Trust me, I’m a Trustee…

Trustees have many duties, including the duty to act for the benefit of the beneficiaries (see a more full list of duties here. But what can you do if you suspect that is not happening? Or perhaps you just feel that you are being kept in the dark and would like some more information about a trust which you are a beneficiary of.

The Trusts Act 2019 came into force on 31 January 2021 and has made the law much clearer regarding beneficiaries’ rights to access trust information.  In summary:

• There is a presumption that a trustee must provide every beneficiary with basic trust information including: the fact that they are a beneficiary, any changes to trustees and contact information, and notice of their right to request a copy of the terms of the trust or trust information.
• There is a presumption that a trustee must, within a reasonable period of time, give a beneficiary the trust information that person has requested.

While this presumption is the starting point , trustees must still consider a number of prescribed factors before they do in fact provide the requested information, so each request must be considered  on its facts. Unless there are good reasons not to provide the requested information, we would generally expect beneficiaries to be able to access (at a minimum) the trust deed and the trust’s financial statements.  This information is crucial if you are concerned about the management of the trust fund and/or investments being made (or not being made) by the trustees.

Most matters can be resolved without the need for Court involvement, however, if a trustee refuses to provide trust information then a beneficiary can apply to the Court for a review of that decision.  If the trustee fails to satisfy the Court that it was reasonably open for the trustee to refuse to provide the information, the Court may make an order that the information is provided (and any other orders it sees fit).

Trustees should approach any requests for information carefully, particularly to avoid the risk of personal costs orders being made against them should the beneficiary apply to the Court.

We can advise both beneficiaries and trustees on the Trusts Act 2019, including the rights of beneficiaries to access information (and any limitations on same), and guide parties through any Court process, if required.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.