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...