Fereydoon Mossanen and others v Julius Baer Trust Company (Singapore) Limited

Dr Fereydoon Mossanen settled The Moss Trust (Singapore) in 2015 for his wife and their two children. Julius Baer Trust Company (Singapore) Limited (JBTC) became trustee in 2016. A 2017 amendment made the trust irrevocable and gave the power of amendment to the wife, but she declined it in 2019. By a 2019 modification signed by the settlor, the wife and JBTC, the power of amendment was given to JBTC acting with the protectors' consent, and a clause was added for the trust fund to pass in two equal shares to two Delaware trusts for the children on the wife's death. The settlor then appointed Mr Jaeggi and Mr Benezra as protectors, and later deeds, ending with a 2024 trust deed, restated the terms. That deed also contained a clause letting the protectors resolve any conflicts and ambiguities in the trust's administration and interpretation in their sole and absolute discretion.

The trust's assets were cash and shares in investment companies holding real estate in the UK and US. After the wife died on 10 November 2024, JBTC said that transferring the UK company shares would incur UK tax because of transactions in 2020, which the settlor believed was JBTC's mistake. JBTC then proposed transferring properties in specie and obtained advice questioning whether the post-2017 amendments were valid. The settlor, the children and Mr Jaeggi sued JBTC in Originating Claim No 848 of 2025, alleging breaches of trust. In Summons No 932 of 2026 they sought summary determination of nine issues; JBTC stayed neutral on the merits.

1. Whether a term should be implied into the 2017 amendment for the power of amendment if the wife declined it, and whether the 2019 modification validly vested that power in JBTC
2. Whether the current terms of the trust are those in the 2024 trust deed and whether the two protectors were validly appointed
3. Whether the clause empowering the protectors to resolve conflicts and ambiguities was valid and enforceable
4. Whether the trustee had to distribute the shares in the investment companies equally to the two Delaware trusts on the wife's death

Applying the three-step test in Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] 4 SLR 193 to a trust deed, the court found a true gap, since neither the settlor nor JBTC contemplated the wife refusing the power. For a family trust, necessity was measured by the settlor's purpose of keeping the trust amendable, not commercial efficacy. The implied term was a limited power for the settlor to vest the power of amendment in someone else, not the claimants' wider joint-consent version.

The court held that the imputed exercise of powers doctrine applies in Singapore: where a person intends a result that can only be achieved by exercising a power they hold, that exercise is imputed unless a positive intention not to exercise it can be inferred. The settlor was taken to have exercised the implied power in the 2019 modification, and JBTC its new power of amendment, with the settlor as sole protector consenting. The later deeds were therefore valid, and the protectors were validly appointed under the amended clause.

On the resolution clause, the court reasoned that resolving disputes and construing a deed involves no true discretion, so "sole and absolute discretion" meant the protectors' rulings were intended to be final. Following In re Raven [1915] 1 Ch 673 and In re Wynn, decd [1952] 1 Ch 271, and distinguishing contractual expert determination because of the court's supervisory jurisdiction over trusts, a clause giving a wide power to conclusively construe a trust or determine disputes over its administration ousts the court's jurisdiction and is contrary to public policy.

On distribution, the clause referred to the entire balance of the trust fund, which consisted of the company shares. The drafting correspondence, to which JBTC raised no comments, confirmed that all assets were to pass to the Delaware trusts.

The High Court allowed the summary determination application in part. It declared that the 2017 amendment contained an implied term, the 2019 modification was valid, the current terms are those of the 2024 trust deed, the two protectors were validly appointed, and JBTC must distribute all trust assets, including the investment company shares, equally to the trustees of the two Delaware trusts. It held, against the claimants, that the protector resolution clause is void and unenforceable. Issues on rectification, estoppel and sanction did not arise. Costs were left for submissions.