Soton Equity and Trusts - alastairhudson.com

Burrell v Burrell [2005] EWHC 245, [25], per Mann J (considered)
3) Mistake by the trustee capable of being set aside
Re Griffiths [2008] EWHC 118 (Ch), [2009] Ch 162, [2009] 2 WLR 394 Lewison J
*Pitt v Holt, Futter v Futter [2011] EWCA Civ 197, Lloyd LJ:
210. … for the equitable jurisdiction to set aside a voluntary disposition for
mistake to be invoked, there must be a mistake on the part of the donor
either as to the legal effect of the disposition or as to an existing fact which
is basic to the transaction. … The fact that the transaction gives rise to
unforeseen fiscal liabilities is a consequence, not an effect, for this
purpose, and is not sufficient to bring the jurisdiction into play.
(E) Trustee’s duty to provide information and to account to the beneficiaries.
Reading: Hudson, section 8.4; Martin 592-596; Pettit 402-405
1) No general obligation for the trustees to give full information to anyone who
considers themselves entitled to an equitable interest under the trust
**O’Rourke v Derbyshire [1920] AC 581 – right to information only if proprietary right
**Re Londonderry [1965] Ch 918, [1964] 3 All ER 855, 860, per Harman LJ (no
obligation to give reasons for decisions nor to disclose confidential information)
‘I would hold that, even if documents of this type ought properly to be
described as trust documents, they are protected for the special reason
which protects the trustees' deliberations on a discretionary matter from
disclosure. If necessary, I hold that this principle overrides the ordinary rule.
This is in my judgment no less in the true interest of the beneficiary than of
the trustees. Again, if one of the trustees commits to paper his suggestions
and circulates them among his co-trustees, or if inquiries are made in
writing as to the circumstances of a member of the class, I decline to hold
that such documents are trust documents the property of the beneficiaries.
In my opinion such documents are not trust documents in the proper sense
at all. On the other hand, if the solicitor advising the trustees commits to
paper an aide-memoire summarising the state of the fund or of the family
and reminding the trustees of past distributions and future possibilities, I
think that must be a document which any beneficiary must be at liberty to
inspect. … I cannot think that communications passing between individual
trustees and appointors are documents in which beneficiaries have a
proprietary right.’
Hawkesley v May [1956] 1 QB 304 – duty only to inform sui juris beneficiaries of the existence
of the trust
Tito v Waddell (No 2) [1977] Ch 106, 242 – no duty to explain terms of trust to beneficiaries
2) The traditional English view: information only for those with proprietary
rights
*O’Rourke v Derbyshire [1920] AC 581, 626, per Lord Wrenbury
[A beneficiary] is entitled to see all the trust documents because they are
trust documents and because he is a beneficiary. They are in a sense his
own. Action or no action, he is entitled to access to them. This has nothing
to do with discovery. The right to discovery is a right to see someone else’
document. A proprietary right is a right to access to documents which are
your own. … A beneficiary has a right of access to the documents which he
desires to inspect upon what has been called in the judgments in this case
a proprietary right. The beneficiary is entitled to see all trust documents,
because they are trust documents, and because he is a beneficiary. They
are, in this sense, his own.
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