Please enable JavaScript.

Coggle requires JavaScript to display documents.

(5) rights of B (Beneficiaries’ right to information (Why might B’s not be…

- - - - S can set out, in a separate document to trust instrument, an expression of wishes in respect of the trust "wish letter" is non binding
      - S can express views about how the trust should be distributed, or about the beneficiaries, in confidence to the trustees (when it is undesirable for a young person to receive a large # of money)
        Hard to argue these should be excluded from consideration by T’s… but if a ‘wish letter’ is forming part of the means by which the trust is distributed, does this mean B’s should be able to see it?
  - - - Re Londonderry’s Settlement [1965] Ch 918 – court asked to rule on what T’s should be obliged to disclose (proprietary nature of the right held from proprietary). Later cases moved away from this case (favouring a discretionary approach)
        
        Troubled by the difference between trust documents vs documents held by trustees. A lot of the discussion centered around whether B had proprietary right in the trust Property and what the consequences were
        
        Danckwerts LJ:“ to disclose such documents might cause infinite trouble in the family, out of all proportion to the benefit which might be received from the inspection of the same. "
  - - - The status of wish letters – Breakspear v Ackland
        
        Issued considered (1) nature of B's right to information (2) status of the letter it wishes in respect of londonberry principle.
        
        Case concerned a highly acrimonious family trust
        (1) Confirmed that Londonderry principle remains good law. Judgement: held that it is in the interest of B family discretionary trusts and advantageous to due administration of such trusts that the exercise by trustees dispositive discretionary powers be regarded from start to finish as an essentially confidential process. The idea about confidentiality still prominent. It is in the interest of B bc it enables T to make discreet but thorough inquiries as to the competing claims for consideration of benefit w/o fear or risk that those inquiries will come to the B's knowledge.
        
        (2) london berry principles of wishes: the 4 categories identified in londonberry were not formulared w wish letters in mind. In breakspeare, the following principles emerged wrt how wish letters ought to be handled.
        
        Gives following principles as to how wish letters should be dealt with:
        
        Trustees should generally regard a wish letter as invested with confidentiality designed to be maintained, relaxed or abandoned as they judge best serves the beneficiaries and the administration of the trust -> moving towards a high level of discretion in the hands of T.
        
        where B requests disclosure, T’s need to consider the exercise of that discretion, though they are not obliged to give a reason for not doing so (the letter is still confidential here). There are not obliged to give a reason for obscuring it.
        
        if T’s apply to the court for directions as to whether to disclose a wish letter, then full disclosure of the letter must be made to the court, and this means that the court will have to determine whether and to what extent any relevant materials may be disclosed to the beneficiary or his legal representative -> ct will decide if the letter will be revealed.
        
        in terms of determining whether to disclose or not, T’s may surrender their discretion to the court, ask the court to effectively ‘bless’ their refusal
        
        the case may also be brought by B in a challenge to the negative discretion of the trustees, or B can seek to invoke an original discretion in the court
        
        If T applies, then they will have to disclose their reasons – but if B applies then the Londonderry principle will entitle the trustees to decline to give reasons on the basis B has not challenged their fairness or honesty, as their reasoning is off-limits
        
        Refusing to disclose wish letter on its own is not sufficient for beneficiary to seek admin interference from cts