Provision of Information by Trustees to Beneficiaries

Trustees 'Need to KNow' Guides

This Trustees 'Need to KNow' Guide provides general guidance of the law at the date of publication. Specialist advice should also be sought.

Updated July 2020.

Does a beneficiary of a trust have a right to access trust documents or information?

Trustees have a duty to inform a beneficiary of the existence and terms of the trust and of the general nature of their interest. Beyond these duties, establishing what information and documents a beneficiary is entitled to see is not always clear cut and it is a common issue that arises when dealing with trusts.

What is the Londonderry principle?

The so-called “Londonderry principle” arises from the case of Re Londonderry’s Settlement [1965] and provides authority for the premise that Trustees should not be required to disclose the rational and processes involved concerning their decisions relating to discretionary matters.

The judgment indicated that a beneficiary’s right to disclosure of information and documents should be regarded as a proprietary right. On this basis, only those beneficiaries with a proprietary interest in the trust property would have a right to disclosure.

What was the impact of Schmidt v Rosewood Trust Limited [2003]?

In Schmidt v Rosewood Trust Limited [2003] the Privy Council held that whether a beneficiary has a right or claim to a proprietary interest in the trust property has no bearing on the court’s inherent jurisdiction to order disclosure. It is at the court’s discretion whether to order disclosure irrespective of whether the claimant has a fixed interest or is an object of a discretionary trust or power of appointment.

What is the effect of the decision in Dawson-Damer & Ors v Taylor Wessing LLP& Ors?

The case of Dawson-Damer v Taylor Wessing LLP concerned a subject access request made pursuant to the Data Protection Act 1998.

Taylor-Wessing, who was acting for the trustees of several Bahamian trusts, had refused to provide the requested data on the grounds that:

  1.  the information was privileged;
  2. the disproportionate effort that would be involved in dealing with request; and
  3. the motive behind the subject access request was to obtain information that could then be used in legal proceedings.

The Court of Appeal found:

  1. the legal professional privilege exemption under the Data Protection Act 1998 should be construed narrowly and does not extend to documents not disclosable to a beneficiary of a trust under trust law principles;
  2. there was insufficient evidence to demonstrate that the search would be disproportionate; and
  3. the intention to use information obtained from a subject access request in legal proceedings was not a reason to avoid compliance with a request.

The Supreme Court clarified that trustees were able to rely on legal advice privilege to withhold documents and that a beneficiary can only “pierce” the privilege between a trustee and legal adviser if the governing law of the applicable trust allows it.

What about offshore jurisdictions?

Offshore jurisdictions, including Jersey, Guernsey, the British Virgin Islands and the Cayman Islands, have their own disclosure rules but they are generally closely aligned with the general position in England and Wales.

How can we help? 

We act for trustees, executors, personal representatives and for individuals claiming against estates, trustees or other parties. We also often advise on complex and cross-jurisdictional issues, and regularly work alongside other intermediaries based offshore. Our team is recognised for our expertise in this field by the legal directories: The Legal 500 and Chambers & Partners. If you have any questions arising from this Need to Know please do not hesitate to contact our Wills, Trusts and Inheritance Disputes Team.

Latest blogs & news

Looking out for financial abuse of the vulnerable

 Financial abuse of older and vulnerable adults is sadly becoming more prevalent

You gotta’ have faith…in ADR

My previous blog examined whether Kenny Goss, the ex-partner of George Michael, may be entitled to a provision from the late singer’s estate, notwithstanding the fact that their relationship had broken down in 2009 (seven years prior to Mr Michael’s death). It was reported at the time that Mr Goss was seeking an award of £15,000 per month on the basis that Mr Michael had been financially maintaining Mr Goss at the time of his death. Pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, Mr Goss made an application for reasonable financial provision from Mr Michael’s estate because he had not been left anything in the singer’s will.

Inheritance claims by adult children

In recent years the courts have seen a significant number of claims under the 1975 Act bought by adult children. This week it has been widely reported that the two adult daughters of Tony Shearer, a high profile banker and finance governor of a well-known public school, have failed in their attempt to bring a claim against their late father’s £2.2 million estate. Mr Shearer made no provision in his estate for his daughters leaving the majority of his wealth to his second wife.

What is required to show dishonesty in the case of a professional trustee?

Examining the impact of Sofer v Swiss Independent Trustees SA on practitioners in England and Wales. 

This article was first published by STEP, December 2020: Katherine Pymont, 'Moments of Truth', Trust Quarterly Review (Vol18 Iss4), pp.36-41

Whoever thought Will forgery would be easy?

Two recent decisions relating to forged wills have highlighted what evidence will be sufficient for a court to make a finding of forgery.

Contentious Trust and Probate Quarterly Round-Up: Q4 2020

This quarterly contentious trust and probate litigation update provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period October 2020 - December 2020.

Beneficiaries in the dark: what can you do to obtain the information you need?

Beneficiaries often have questions and concerns over how the estate of a loved one is being administered but are sometimes kept in the dark by personal representatives (PRs). Under section 25(b) of the Administration of Estates Act 1925 (AEA 1925) PRs can be required by the court to provide, on oath, a full inventory of the estate and an account of what steps they have taken to administer an estate. 

Leaving a legacy to charity: avoiding a will construction claim

The High Court has recently given judgment in the case of Knipe v The British Racing Drivers’ Motor Sport Charity and Ors [2020] EWHC 3295 (Ch), a summary judgment application concerning the construction of a will of a deceased racing driver, Mr Barrie Williams, who had sought to make several bequests to charity but the names of the organisations had not been correctly recorded.

When can a Will be rectified? Barrett v Hammond (2020)

One of the questions we are often asked is whether an individual’s will can be amended after their death if it doesn’t reflect their intentions. This is sometimes possible under a process known as rectification, although the circumstances in which rectification is available are limited. A claim for rectification was recently considered by the court at the end of 2020 in the case of Barrett v Hammond & others.

Did George Michael have the freedom to exclude his ex-partner from his will?

It has been alleged that the ex-partner of George Michael, Kenny Goss, may be considering issuing a claim against the singer’s estate. Goss was excluded from the singer’s Will but purportedly claims he is entitled to a monthly allowance of £15,000 as the singer provided this monthly allowance to him before their relationship broke down in 2009.

Highly publicised matters arising in relation to the administration of the late Steve Bing’s estate in the US give rise to some interesting legal issues

Before the Family Law Reform Act 1969 (“the 1969 Act”) came into force on 1 September 1970, the common law rules of construction that a child is legitimate only if the child was born or conceived in wedlock applied when dealing with trust deeds or wills. The 1969 Act is not retrospective so difficulties may still arise in relation to trust deeds or wills settled/executed prior to that time.

Think twice: might the estate be insolvent?

This blog focuses on two practical considerations that should be borne in mind when dealing with an estate where there are any suspicions that the value of the assets when realised may be insufficient to meet all debts and liabilities in full.

Glover v Barker – Cost Orders against Litigation Friends

It is not uncommon in claims involving trusts and estates for one or more of the parties to be a child or other protected party. This is particularly true of claims under the Inheritance (Provision for Family and Dependants) Act 1975 and in cases involving trusts with minor beneficiaries. The procedures for litigation by or on behalf of a protected party are covered by Part 21 of the Civil Procedure Rules. 

How to challenge a will

This article was first published by EPrivateClient on the 18th August 2020

Contentious Trust and Probate Quarterly Round-Up: Q2 2020

This quarterly contentious trust and probate litigation update provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period April 2020 - June 2020.

Solicitors’ Delay in preparing a Will – When is it Negligent?

Delay is a common complaint in professional negligence claims against solicitors in the context of wills and probate. For example, If a client is in poor health or advanced old age and wants to create or update their will, they might instruct a solicitor to assist with this. If the client dies before the new will can be prepared and/or executed, the beneficiaries who would have inherited, had the will been put in place before the client’s death, may look to bring a professional negligence claim against the solicitor if there has been undue delay by the solicitor in preparing the will.

Testamentary Capacity and Undue Influence – When does a Professional Negligence Claim arise?

Solicitors in any field of practice are under a duty to exercise reasonable care and skill when acting for clients. In wills and probate practice, that duty also extends to the beneficiaries of a testator. If the solicitor has acted in breach of that duty, which causes loss to the client or their beneficiaries, this could form the basis for a professional negligence claim against the solicitor.

The Forfeiture Rule - can a person who is convicted of killing another benefit from their crime?

Most people would agree that if a person is convicted of unlawfully killing another person, it would be wrong for them to be allowed to benefit from their crime. For example, if a husband kills his wife and is the main beneficiary of his wife’s valuable life insurance policy, or is the main beneficiary of her estate under a will she has made, it would generally be unpalatable for the husband to be allowed to benefit from the policy or the estate. This principle is unheld in law by what is known as ‘the forfeiture rule’.

Are ‘no win no fee’ arrangements suitable for inheritance claims under the 1975 Act?

When a client decides to pursue a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision, one of the first discussions between lawyer and client is how the claim will be funded.

Professional Negligence Claims arising in relation to Wills and Estates

A professional has a duty to exercise “reasonable care and skill” when dealing with their clients. Negligence claims against solicitors can arise for all manner of reasons. Katherine provides some examples of how a solicitor's actions within the remit of wills and estates may give rise to professional negligence. 

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