The recent decision in Erceg v Erceg by the Court of Appeal provides guidance on the approach to the disclosure of trust documents to beneficiaries (including bankrupt beneficiaries) by trustees. In our experience, many trustees fail to adequately provide information to beneficiaries about both their entitlement, the financial position of the trust and the decisions made by the trustees.
The Court of Appeal in its judgment set out what it considered to be the position regarding disclosure of information by trustees in the proper course of administration of a trust. In summary, the court concluded:
“The Trustees should approach a request by a beneficiary for disclosure of trust documents as one calling for the exercise of discretion in discharge of the fiduciary duty the trustee owes a beneficiary.
A beneficiary has an entitlement as of right to disclosure of trust documents. Consequently, there is no presumption favouring disclosure. But nor is there a presumption against disclosure.
Whether to disclose, and, if so, the extent of disclosure, are discretionary decisions for the trustee. Thus, if the trustee decides to disclose, the trustee’s discretion encompasses whether the disclosure should be complete or partial (for instance, made with redactions).
In making the decision, the question for a trustee is always: What, if any, disclosure will be better to:
a. ensure the sound administration of the trust;
b. discharge the powers and discretions in respect of the fiduciary obligations the trustee owes the beneficiary, in particular the trustee’s duty to account?
c. Meet the trustee’s obligation to fulfil the settlor’s wishes?”
The courts also noted that an excellent summary of the trustee’s obligations are set out in the case Schmidt v Rosewood Trust Limited  UK PC 26;  2 AC709. It did however conclude that the considerations for a trustee will be circumstances dependent.
It is our experience that usually trustees do not provide any information to beneficiaries. In addition, beneficiaries are often not aware of their rights.
Based on our extensive experience in the management and trusteeship of trusts, we believe that beneficiaries should be aware that they are beneficiaries of a trust, they should have a copy of the deed, and unless there are compelling circumstances otherwise they should receive summarised financial information on an annual basis and details of trustee’s decisions. It is not necessary however for trustees to provide the basis of their decisions.
This continues to be an evolving area of law and with New Zealand currently going through a review of trust law, we expect there to be significant changes to the future Trustee Act which will actually statutory require certain disclosures to be made. Best practice is going to become standard practice in our opinion within the next few years.
If you would like to discuss this further please contact Nigel Smith or Marcus Diprose