Hello anthonyhamilton-ga,
Firstly I wish to emphasize the disclaimer you will see at the bottom
of this page, that Google Answers should not be viewed as a substitute
for professional legal advice. The information I have found for you is
being offered as potential background material you may wish to discuss
with your lawyers.
I have found an very extensive and detailed discussion of the topic of
your query in a paper dated 25 September 2002 “Rights of Trust
Beneficiaries to Information” by Paul Buckle, a Senior Lawyer.
Although Buckle works in the Channel Islands, the paper includes a
detailed discussion of English law on this matter, since this is also
taken as a precedent for cases heard in Jersey and Guernsey.
The paper is available as a Word document at
http://www.olsensgroup.com/infosheets/Rights%20of%20Trust%20Beneficiaries%20to%20Information%2025%20Nov%20plus%20cover.doc
However, since Buckle’s company has merged with another one and the
web site is being transferred, I don’t know how long this URL will be
available. Google’s cache of the paper is at
http://216.239.39.100/search?q=cache:wE-IO7T3p6QC:www.olsensgroup.com/infosheets/Rights%2520of%2520Trust%2520Beneficiaries%2520to%2520Information%252025%2520Nov%2520plus%2520cover.doc
Here are some of the salient points from the paper:
“Under English law it is a basic principle that... the beneficiary is
also entitled to other documents, such as trust deeds and
supplementary documents, unless they fall into one of the categories
of exempted documents which are discussed in sections 8 and 9 below.”
(The cases in English law referred to by Buckle in this paragraph are:
Re Tillott [1892] 1 Ch 86; Re Londonderry’s Settlement [1965] Ch 918)
"... leading case is Re Londonderry’s Settlements [1965] Ch 918
(“Londonderry”) where the Court of Appeal was faced with an
application for disclosure of various trust documents... by a
discretionary beneficiary. The Court attempted to define “trust
documents” as showing the common characteristics of (1) being in the
possession of the trustees qua trustees, (2) containing information
about the trust which the beneficiaries are entitled to know and (3)
being such as to give the beneficiaries a proprietary right to see
them... the Court of Appeal in Spread ordered that... the trustee
should deliver up to Mr Hutcheson trust deeds, deeds of appointment
and deeds changing trustee, meetings of members and directors of the
underlying companies, the trust accounts themselves, and copies of
trustee invoices relating to charges and expenses."
Sections 8 and 9, concerning exempted documents, refer to material
such as confidential company or partnership documents or potentially
incriminating material.
However, the author also makes the point:
“Even where disclosure would otherwise be available... the Court
retains a discretion to refuse disclosure... In Re Cowin (1886) 33 Ch
179 for example, it was said that “It seems to me, therefore, that
the plaintiff is entitled to see the deeds, subject to this, that
there might be circumstances which would justify the trustee in
withholding them from him”… the Court may refuse disclosure if it is
not in the best interests of the beneficiaries as a whole, or in
relation to a letter of wishes. Similarly in Re Londonderry the Court
remarked that “For these reasons, therefore, it seems to me that there
must be a very restricted application of the observation that the
beneficiaries are entitled to see all trust documents. The matter
must be one which is subject to special circumstances and the right to
disclose cannot apply to all trust documents”.
I followed up by using “Re Londonderry's Settlement” as a search term
and found a further useful reference specifically in relation to
English Law:
The web site of the UK Association of Corporate Trustees has the
following statement about the matter:
“Trustees will sometimes be faced with the dilemma of whether they
should comply with a beneficiary's request for disclosure of trust
documents, particularly if that request is made by a beneficiary who
is attacking or is about to attack the trust. The courts tend to be
reluctant, even in those circumstances, to decline to order disclosure
of trust documents (as defined in re Londonderry's Settlement [1965]
Ch 918), but may attach conditions to the making of that order as in
Lemos v Coutts & Co (Cayman) Limited [1992-3] CILR 490.”
http://www.trustees.org.uk/1996/TrusteeProblems.htm
Search strategy 1. “can a beneficiary” obtain trust deeds 2. “Re
Londonderry's Settlement” |
