Right to have access to the Deeds of a Trust {General Law}

A person who has a beneficial interest in a trust has a right of access to the the Trust Deed that established the trust and any instrument that purports to vary the terms of the original Trust Deed.

G.E. Dal Pont and D.R.C Chalmers in Equity and Trusts in Australia (4th Edition –Lawbook Co 2007) state at [20.50]:

“Beneficiaries are entitled to names of all past and present trustees, and their dates of appointment, retirement or resignation, including copies of any deeds or documents effecting these changes. Beneficiaries are also entitled to any deeds or documents constituting or varying the terms of the trust {Foreman v Kingston [2004] 1 NZLR 841 at [101] (HC)}

 

Geraint Thomas states in Thomas on Powers {1st Edition} at 6-245:

Prima facie a beneficiary is entitled to inspect, either personally or through his solicitor {Re Cowin (1886) 33 Ch D 179 at 186-187}, all documents held by a trustee that can be called “trust documents” {Simpson v Bathurst (1869) LR 5 Ch App. 193 at 202; Bursill v Tanner (1885) 16 QBD 1; Re Cowin, supra at 186-187; Re Ojjeh Trust [1993] CILR 348}. He is also entitled at his own expense, to obtain copies of all such documents {{ex p. Holdsworth (1838) 4 Bing. N.C. 386; Ottley v Gilbey (1845) 8 Beav. 602}. These include documents creating the trust { ex p. Holdsworth (1838) 4 Bing. N.C. 386; Bhander v Barclays (1997/8) 1 OFLR 497}; all instruments effecting changes in trusteeship; all documents exercising or releasing powers of appointment, at least in so far as the interest of that beneficiary are affected; all vouchers for payments made by the trustees or their agents and all written notices received by the trustees in relation to that beneficiary’s interest {Re Postlethwaite (1887) 35 Ch. D. 722 at 727 Re Booth’s Settlement Trusts (1853) 1 WR 444; Hallows v Lloyd (1888) 39 Ch D. 686 at 691}.

Thomas continues:

Instructions submitted by trustees to counsel, and opinions obtained from counsel, to guide them in the administration of the trust (including, presumably, to resolve points of construction) are also regarded as trust documents {Devaynes v Robinson (1855) 20 Beav 42; Wynee v Humberston (1858) 27 Beav 421 at 423-424; Talbot v Marshfield (1865) 2 Dr & Sm 549}, But not such relate to the trustees’ own defence in litigation against them, nor any documents produced in connection with the case {Brown v Oakshott (1849) 12 Beav 252; Wynee v Humberston (1858) 27 Beav 421; Talbot v Marshfield (1865) 2 Dr & Sm 549; Thomas v Secretary of State for India (1870) 18 WR 312}.Correspondence (and copies thereof) passing between the trustees and their solicitors relating to the affairs of the trust also rank as trust documents {Re Londonderry’s Settlement [1965] Ch 918 at 934; Re Mason (1883) 22 Ch D 609; Re Postlethwaite (1887) 35 Ch. D. 722}.

 

Thomas provides the following definition of “trust documents” at [6-245]:

Thus, in broad terms, trust documents are documents which are in the possession of trustees as trustees, which record the history and the current status of the trusts and their administration, and which would have to be handed over to new trustees {Re Booth’s Settlement Trusts (1853) 1 WR 444} (and indeed, for which the new trustees would have to search, if necessary, amongst their trust papers){Hallows v Lloyd (1888) 39 Ch D 686 at 691} if the latter are to be able to understand what the trust are and have been and what their obligations in respect thereof now are. On the other hand, trust documents do not generally include the agenda or minutes of trustees’ meetings, nor any documents which relate to or record their deliberations or disclose the reasons for their decisions or the material upon which they are based.

McDonald v Ellis

The Privy Council ruled in relation to discretionary trusts in Schmidt v Rosewood [2003] 2 WLR 1458 that the disclosure of trust documents was part of the Court’s inherent discretion to supervise the administration of a trust, to decide whether or not a discretionary beneficiary is entitled to access to information.

However it has been held in Australia that the proprietary approaches in Re Londonderry [1965] 2 WLR 229 and O’Rourke v Darbishire [1920] AC 581 continue to have effect even after Schmidt v Rosewood on the basis that the court’s inherent discretion ought to favour those beneficiaries on the basis of their proprietary interest in the trust {Crowe v Stevedoring Employees Retirement Fund [2003] PLR 343}.

The disclosure of trust documents is also supported by the “Beneficiary Principle” since the logic of the laws of trusts is that the conscience of the trustee is controlled by the court only if there is some person in whose favour the court can decree performance. However, if the beneficiaries do not have access to the trust information, then they cannot commence litigation and the court will therefore not be able to take control over the trustees’ actions. Thus, the logic of trusts law threatens to collapse unless the beneficiaries have access to the necessary trust documents. {Refer 8.4.45 – Equity and Trusts, Alastair Hudson, 5th Edition Routledge-Cavendish}.


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This tab updated on 15 March 2015