Jersey: Trustees Disclosure – Two Recent Decisions From The Common Law Jurisdictions

The thorny issue of what a trustee must disclose at the request of any beneficiary is a topic which has received much judicial guidance over recent years. The key decision for trustees is still that of Schmidt v Rosewood [2003] UKPC 26 which imposes judicial supervision over disclosure decisions in proper cases. Two recent cases, Breakspear v Ackland [2008] EWCH 220 and Wingate v Butterfield Trust [2008] WTLR 357 give further guidance to Jersey trustees in this most difficult area.

In Breakspear v Ackland the key question was whether a letter of wishes should be disclosed. In Wingate v Butterfield, the question was whether the documents of a wholly owned subsidiary company to a discretionary trust should be disclosed.

BREAKSPEAR V ACKLAND [2008] EWCH 220 (CH); [2008] 2 ALL ER (COMM) 62

In this English case, beneficiaries of a discretionary family trust sought disclosure of a Letter of Wishes and of oral statements of the de facto settlor's wishes which he had sent or communicated to trustees. The test as stated in Schmidt v Rosewood was relied upon by Briggs J in re-affirming that there is now virtual unanimity amongst the common law jurisdictions that a request for disclosure of a letter of wishes (or 'wish letter' as Briggs J referred to it) calls for an exercise of discretion by the trustee, rather than any examination of proprietary rights which the beneficiary may have.

When considering whether to disclose the letter of wishes (which was by its very nature inherently confidential) Briggs J disagreed with the view that there was a judicial trend towards disclosure of these types of documents. The question of whether to disclose such a document is entirely within the discretion of the trustee and they should not, Briggs J stated, approach the question of this discretion with a predisposition one way or the other.

Importantly, Briggs J identified that a letter of wishes which was by its very nature 'confidential' could still be disclosed if it was felt appropriate either by the trustees or in a proper case, by a court. Once the trustee had decided upon constituting the trust any decision in regards to the letter of wishes (or any other trust document) was purely one for the trustees or the court. It was not therefore appropriate to attempt to fetter this discretion by including terms within the letter of wishes or seeking to impose any such terms subsequently.

The court in this case was not prepared to conclude that the trustee's decision to refuse disclosure was wrong. However, the trustees were seeking the court's sanction for a scheme of distribution, meaning that the letter of wishes needed to be disclosed for a full review of the scheme and in asking for approval trustees would necessarily surrender confidentiality in a full examination of their reasoning.

WINGATE V BUTTERFIELD TRUST (BERMUDA) LTD [2008] WTLR 357

The Trust was a discretionary trust holding shares in a property holding company. The Plaintiff sought disclosure of five categories of documents including some concerning the activities of the property holding company.

The Bermudan Court ordered the production of documents including those of the underlying company. The Court importantly, did not draw any distinction between trust accounts or financial records and documents relating to trust management and business operations.

COMMENT

There is no doubting that trustees face a Herculean struggle in the difficult area of whether to disclose certain documents to any particular beneficiary (whatever their status). Schmidt v Rosewood put the emphasis upon the trustee but the question for the trustee became – "would a court if considering the issue order me to disclose this document?" That is a difficult question for a trustee to answer. It is also not a question that any trustee is used to asking themselves, although they are well versed in exercising their own discretion.

The decision of Briggs J in Breakspear attempts to put the emphasis back upon the decision being one for the trustee to consider in the exercise of their discretion. Given that trustees are well practised in this exercise, one would hope that this emphasis allows them to balance the competing considerations to come to their own conclusion. As long as the discretion is not exercised unreasonably or irrationally, the court is unlikely to come to a different conclusion than the trustees in any given disclosure question.

A further important point from the decision in Breakspear is that a trustee may not hide behind labels of 'confidentiality' or 'privacy'. This is a principle already enshrined in Jersey trust law (see In re Internine and the Azali Trusts 2006 JLR 195). Any such labels are likely to be given short shrift by a court later seized of the matter and should also be ignored by trustees. That is not to say that a confidential document should or should not be disclosed only that such labels do not serve to fetter the discretion of the trustees.

The Bermudan decision of Wingate v Butterfield trust is illuminating because it answers a question which (on a practical level) many trustees must have encountered. The Bermudan Court defined documents relating to an underlying subsidiary company of the trust as being 'trust accounts' or 'financial records' of the trust. As such, they should all form part of the disclosure to the beneficiaries. The decision again emphasises the importance of the trustees' duty to ensure that any wholly owned subsidiary company is being managed effectively, echoing the Jersey Royal Court's recent judgment of Freeman v Ansbacher.

Although both decisions are not Jersey judgments they provide further practical guidance to Jersey trustees in any difficult disclosure decisions which are unfortunately, inevitable.

www.bakerandpartners.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions