Rethinking Gibraltar's trust law and abolishing perpetuities

The rule against perpetuities has long been a cornerstone of trust law in common law jurisdictions, restricting the duration of certain property interests to avoid indefinite control over assets. While the rule serves to prevent the ‘dead hand’ of a settlor from excessively controlling property across generations, many jurisdictions have re-evaluated its utility, considering modern financial and societal needs. 

The Cayman Islands recently joined a growing list of jurisdictions abolishing or significantly limiting the rule, offering new opportunities for asset structuring and estate planning. This article explores the history and evolution of the rule, compares approaches across jurisdictions, and examines why Gibraltar may benefit from following suit.

Historic context of the rule against perpetuities

The rule against perpetuities has its roots in 17th-century English law, introduced to prevent landowners from imposing excessive restrictions on property. Under the common-law rule, an interest must vest, if at all, within 21 years after the death of a relevant "life in being". This restriction sought to balance the rights of property owners to control their assets with the public interest in ensuring the free alienation of property.

Over time, the rule became increasingly criticised for its complexity and its potential to invalidate trusts based on technicalities. Modern statutory reforms, such as those in England and Wales under the Perpetuities and Accumulations Acts of 1964 and 2009, have sought to simplify and extend the allowable period, but they stop short of outright abolition.

The complexity of the rule against perpetuities often led to unintended consequences, where trusts were invalidated due to a failure to comply with technical requirements. The rule became particularly problematic in an era where global wealth structuring and cross-border estate planning require flexibility in the creation and administration of trusts. As a result, many jurisdictions have moved towards either extending the perpetuity period or abolishing the rule altogether to make their legal systems more attractive to international clients.

Recent developments in Cayman

By the Perpetuities (Amendment) Act 2024, Cayman has abolished the rule against perpetuities for new ordinary trusts, aligning itself with other jurisdictions like Jersey and Bermuda. Settlors now have the freedom to create trusts with unlimited durations, provided the trust does not involve land in Cayman.

Previously, the rule against perpetuities in Cayman applied differently depending on the type of trust. Ordinary trusts established on or after 1 August 1995 were subject to a statutory maximum perpetuity period of 150 years, complemented by a “wait and see” approach. Under this rule, an interest in property would not fail immediately due to non-compliance but only if it became certain the interest would not vest within the perpetuity period. This provided a safeguard for trusts that omitted to specify an appropriate perpetuity period. 

In contrast, STAR trusts – a unique statutory framework in Cayman for non-charitable purpose trusts – were entirely exempt from the rule against perpetuities. These trusts could exist indefinitely, making them attractive for certain specialised purposes. Similarly, charitable trusts and pension funds were not subject to any perpetuity restrictions, allowing these structures to operate in perpetuity without concern for the rule.

The 2024 Act provides settlors of new Cayman ordinary trusts the option to disapply the rule against perpetuities, allowing trusts to have unlimited durations, provided they do not hold land or interests in land in Cayman. If the settlor does not expressly disapply the rule, a maximum perpetuity period of 150 years will apply. The 2024 Act does not retroactively affect existing trusts, meaning the perpetuity period for trusts created before the Act remains unchanged. However, settlors, enforcers, or trustees of existing Cayman law-governed trusts can apply to the Grand Court to disapply the rule, enabling those trusts to continue indefinitely.

Commentators and practitioners have applauded this reform as a reflection of Cayman's recognition of evolving client needs, particularly for high-net-worth individuals from civil law jurisdictions who may be unfamiliar with perpetuity restrictions. The reform enhances Cayman’s attractiveness as a trust jurisdiction, providing a more accommodating legal framework for multi-generational wealth preservation and succession planning.

Gibraltar's current position

Gibraltar retains the rule against perpetuities, albeit in a modified form. The Perpetuities and Accumulations Act 1986, as amended in 2014, extended the perpetuity period to 250 years, significantly longer than the traditional common-law period of 21 years plus a life in being. Trustees can also amend the duration of dispositions made before 2014 by a further 100 years, by executing a deed, providing flexibility within the existing framework.

While this extension represents a modernised approach, Gibraltar’s maintenance of the rule may place it at a competitive disadvantage compared to jurisdictions that have abolished it entirely. The long perpetuity period of 250 years is more accommodating than the original common-law rule, but it still imposes an arbitrary limit that may not align with the needs of modern trust settlors. Given that many international clients are opting for perpetual trusts, Gibraltar’s continued adherence to the rule could dissuade high-net-worth individuals and family offices from structuring their trusts under Gibraltar law.

The benefits of abolishing the rule against perpetuities

The abolition of the perpetuity period could make Gibraltar a more attractive destination for international clients seeking flexible estate planning solutions. High-net-worth individuals often prefer structures like perpetual trusts to preserve family wealth across generations. By aligning with jurisdictions like Jersey, Bermuda, and Cayman, Gibraltar could better compete for such clients.

Dynastic trusts are increasingly popular among wealthy families aiming to preserve assets indefinitely for future generations. Abolishing the rule would allow Gibraltar to cater to this demand, providing a robust platform for long-term wealth management without the artificial constraints imposed by perpetuity periods. In contrast, jurisdictions that maintain a perpetuity rule risk being perceived as outdated or less flexible. 

As trusts practitioners will attest, the perpetuity rule is complex, often resulting in disputes over technicalities and unintended invalidations of trusts. Removing the rule could simplify Gibraltar’s trust law, reducing administrative burdens and litigation risks. Jurisdictions that have abolished the rule are reported to have seen significant benefits in terms of attracting international trust business, and it is believed that Gibraltar could similarly position itself as a preferred jurisdiction for sophisticated wealth planning.

Conclusion

The rule against perpetuities, though historically significant, has arguable become increasingly irrelevant in the modern financial world. Gibraltar’s current position, while more flexible than traditional common-law approaches, still imposes unnecessary restrictions that could be deterring potential clients, particularly those from civil law jurisdictions. By abolishing the perpetuity period, Gibraltar might not only simplify its trust law but also enhance its attractiveness as a global financial center, aligning with leading jurisdictions and meeting the evolving needs of international clients.