Beneficiaries' Rights To The Disclosure of Trust Documents
INTRODUCTION
The purpose of this briefing note is to consider Jersey trust
law in relation to beneficiaries' rights to trust documents, in
particular, Article 29 of the Trusts (Jersey) Law 1984, as amended,
and the cases of In re Rabaiotti 1989 Settlement [2000 JLR 173] and
Schmidt v. Rosewood Trust Company Ltd [2003] 3 All ER
76.
TRUSTEES' DUTY TO ACCOUNT
In the English case of Armitage v. Nurse [1998] Ch 241
it was held that there was an irreducible core of obligations owed
by a trustee to beneficiaries which is fundamental to the concept
of a trust. If those obligations are missing then there is no
trust. The duty of a trustee to account to beneficiaries for his
administration of a trust is one of those core obligations and the
right of beneficiaries to trust documents enables beneficiaries to
enforce that duty to account.
Although it is clear that, in principle, beneficiaries have a
right to see trust documents, it is also the case that there are
limitations on this right and, as a result, it is often difficult
for a trustee to decide how to react to requests for
disclosure.
RIGHTS TO DISCLOSURE CONFERRED ON BENEFICIARIES UNDER THE
TRUSTS (JERSEY) LAW 1984 (AS AMENDED) (THE "LAW")
Article 29
Article 29 of the Law reads as follows:
Trustee may refuse to make disclosure
Subject to the terms of the trust and subject to any order
of the court, a trustee shall not be required to disclose to any
person, any document which ?
(a) discloses the trustee's deliberations as to the
manner in which the trustee has exercised a power or discretion or
performed a duty conferred or imposed upon him or her;
(b) discloses the reason for any particular exercise of such
power or discretion or performance of duty or the material upon
which such reason shall or might have been based;
(c) relates to the exercise or proposed exercise of such
power or discretion or the performance or proposed performance of
such duty; or
(d) relates to or forms part of the accounts of the
trust,
unless, in a case to which sub-paragraph (d) applies, that
person is a beneficiary under the trust not being a charity, or a
charity which is referred to by name in the terms of the trust as a
beneficiary under the trust or the enforcer in relation to any
non-charitable purposes of the trust.
The right of beneficiaries to see the accounts of the
trust
At first glance Article 29 can appear somewhat confusing, but it
is clear that, despite its heading, it confers positive rights on
beneficiaries to see documents relating to the accounts of the
trust (a point confirmed in Rabaiotti).
Unfortunately, the meaning and scope of the phrase,
"documents which relate to or form part of the accounts of
the trust", is not entirely clear. In West v.
Lazard [1987-88 JLR 414] it was given a very wide meaning so
as to include "all accounts, vouchers, coupons, documents,
and correspondence relating to the administration of the trust
property". However In re Lombardo Settlement (5 December
1990 unreported) and In re a settlement [1994 JLR 139] it was
suggested that the phrase did not have such a wide meaning. The
Economic Development Committee, in its recent consultation on
proposed amendments to the Law, did consider introducing a
definition of accounts but decided that to do so would be too
difficult.
Documents which beneficiaries are not entitled to see
Article 29 also sets out several categories of documents which a
trustee is not normally required to disclose to beneficiaries,
namely, documents which fall within sub-paragraphs (a) to (c). In
very general terms, they are those documents which set out the
reasons for the exercise of the trustee's powers or the
performance of his duties.
The role of the courts and the trust instrument
It is also important to note the opening words of the Article,
which make it clear that disclosure or non-disclosure (as the case
may be) is subject to an order of the court (see Rabaiotti below)
or the terms of the trust instrument. In relation to the latter, it
may be possible for a trust instrument to further restrict
beneficiaries' rights to trust documents or indeed widen them
beyond the scope of Article 29. What is clear though is that the
trust instrument cannot unduly restrict or exclude entirely
beneficiaries' rights to...
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