Divorce case impacts on trust business
important implications for trusts established in Bermuda.
Mrs. Pamela Anne Ellefsen of New Hampshire has won a $750,000 judgment against her ex-husband, Mr. Tore Nelson Ellefsen.
But Mr. Ellefsen's money is tied up in a Bermuda-based trust.
Mrs. Ellefsen wants to "lift the corporate veil'' and get at the money.
The case is expected to be heard before Puisne Judge the Hon. Mr. Justice Ground this year.
In preliminary rulings arising from arguments heard in chambers, Mr. Justice Ground has upheld the $750,000 judgment Mrs. Ellefsen won in New Hampshire. He has also ruled that assets in the trust are not to be altered until the case is resolved.
And the judge has already touched on the case's significance.
In an October 22 ruling, he said he took "judicial notice'' of the importance of trust business and offshore companies to the Island's economy, and "the importance to its continued prosperous existence of protecting and fostering the legal institutions and concepts upon which it depends.
"However, ...it is at least equally as important to the success of Bermuda as a financial centre that it maintains its probity and that investors and others have confidence in its institutions.
"Chief among those institutions are the courts, and the paramount concern is that they apply the existing law fairly and in accordance with established practice and precedent.'' In arguing that the American judgment should not be upheld in Bermuda, lawyers for Mr. Ellefsen said it was contrary to Bermuda public policy, which recognised "the legal independence of limited liability companies and the distinction between legal and equitable interests.'' The trust, operated by the Bermuda Trust Company Ltd., owns the shares in Polar Offshore Marine Ltd., a Bermuda-based offshore oil company.
The shares were worth more than $3 million as of January 31, 1992. The New Hampshire Court ruled that the trust and company shares were effectively Mr.
Ellefsen's "private pocketbook.'' His lawyers argue the assets of the company and the trust are not legally his. A trust is a vehicle for holding assets.
Usually, the assets are transferred from an individual to a trustee.
"If a divorce action, wherever it is in the world, can influence a Bermuda-operated trust, I don't think you'll see too many trusts established here,'' a beneficiary of a Bermuda-based trust told The Royal Gazette .
Other sources said the case was "interesting and complex,'' but its importance should not be overstated.
In the Ellefsen case, the trust was established when the couple was together and it is understood both were in the trust company office when it was set up.
The couple divorced, remarried, then divorced again. Mrs. Ellefsen is represented by Mr. David Kessaram of Cox and Wilkinson. Mr. Ellefsen is represented by Mr. Mark Diel and Mr. Mark Pettingill of Smith, Barnard and Diel. The Bermuda Trust Company is represented by Mr. Jeffrey Elkinson of Conyers, Dill and Pearman.