By Larissa Bodniowycz, J.D. There have been a number of recent cases where beneficiaries have gone to court to seek information about the activities of a trust of which they are a beneficiary. ... the trustee may withhold the basic trust information or refuse a beneficiary’s request for trust information. If a beneficiary requests information about the trust, you should bear in mind that the beneficiary has no entitlement as of right. The cases have helped shed light on what and how much a beneficiary is entitled to know about the … Furthermore, if a beneficiary is not receiving the information they expect from an executor, they should request it. Beneficiaries are entitled to a certain amount of information about the trust of which they are a beneficiary and trustees have a duty to disclose that information to them. Beneficiaries are generally not entitled to see any documents pertaining to the trustees’ decision-making process, such as minutes of any trustee meetings. Certain beneficiaries must be provided with information as of right – e.g. The new Trusts Act clarifies and codifies beneficiaries’ rights to certain trust information to help beneficiaries make sure that the trustees are complying with their duties and the terms of the trust. Right to information. As a beneficiary, you only have legal rights over your share of the inheritance once the estate has been distributed. As a Beneficiary of a Will, What Are My Rights to Information? ... A beneficiary cannot dispose of the assets until he or she takes control of them. However, you should not refuse disclosure simply because the settlor has requested that the letter remain confidential; documents about the exercise of your powers and discretions; and. However, trustees can sometimes be reluctant to disclose certain information about a trust or beneficiaries are … There is a risk you will incur personal liability for the costs a beneficiary incurs if they apply to the Court for disclosure. Here are some key points to bear in mind whether you are a trustee or a beneficiary. By continuing to use this site you consent to the use of cookies on your device as described in our cookie policy unless you have disabled them. Enter your details to receive copies of our regular e-bulletins. Following the revelations by the CQC that blanket DNAR orders (Do not attempt to resuscitate) were being imposed by care homes on the recommendations of GPs during the first stage of the Covid-19 pandemic, there has been a wave of understandable outrage. The rights of a trust beneficiary depend on the type of trust, the type of beneficiary, provisions contained in the trust, and state law. Explains which information trustees have a duty to provide to beneficiaries and which is subject to their discretion. Contesting a will. Trustees will usually have an obligation to allow beneficiaries to have sight of certain documents explaining the assets held within the trust, terms under which the trust operates, and who the trustees are. This can lead to uncertainty, confusion and occasionally mistrust and resentment. Obligations v. Rights. Do I have a right to request and obtain information? Blanket ‘Do not resuscitate’ orders are not lawful, The Ockenden Report: how Shrewsbury and Telford NHS Trust maternity services failed mothers and babies. So what is a DNAR and when should it be used? While a beneficiary can obtain a copy of the will during probate, the executor is under no obligation to furnish a copy or provide any information about … Executor & Beneficiary Rights to an Estate. However, before refusing disclosure, you should consider other options available to you. a life tenant about the trust income they are entitled to. These trust duties are owed to the beneficiaries of the estate. Beneficiary Rights Home » Executor Basics » Beneficiary Rights. A beneficiary has the right to ask a trustee for the following information: 1. the trust deed and any deeds of variation 2. the trust’s accounts 3. contact details for the trustee and any former trustees 4. documents relating to the appointment or removal of trustees 5. details of all distributions and the recipients of the distributions 6. full details of the trust’s assets and liabilities 7. documents relating to the winding up or resettlement of the trust if the trust was wound up or resettled. These include: offering to release the documents to the beneficiary’s advisers, rather than to the beneficiary; and. However, if a trustee believes that the event will not occur during your lifetime, you may struggle to assert your rights to information. Details of these can be found on our Cookie Policy. The rights of a beneficiary are not always printed out in black and white. Many times a beneficiary is unsure of his/her rights and many questions arise. You should exercise caution if a beneficiary seeks disclosure of trust accounts if you are concerned it may be to attack the trust. Although beneficiaries have a legitimate expectation of disclosure, they are not entitled to disclosure as a matter of right. Advising executors on their duty to provide information to beneficiaries and how to progress the administration of the estate in the light of an unmerited claim for information from a beneficiary. However, the majority of people who can benefit from these trusts either do not know about the trust, or about their rights… However the trustee does not always have to give out information if it does not pertain to the state and amount of the trust property. » Expertise» Services for individuals - Private client and tax» Contentious probate and trust disputes» A beneficiary’s right to information. Beneficiaries have a right to be kept informed of matters relating to their share of the estate – at all stages of the estate’s administration. These trusts control assets worth billions of dollars. by Katie Alsop You do however have a right to information before then, so you can be kept up to date with the administration of the estate. Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority. They are enforced by the Courts. the information has been requested for an improper purpose (such as challenging the validity of the trust, which would not be in the interests of the beneficiaries as a whole). if applicable, the settlor’s letter to you setting out their wishes in relation to the trust. A beneficiary has no entitlement as of right to such documentation - it is at the trustee's discretion to disclose any requested information. If you have the right to receive income from the trust during your lifetime, or a right to live in a property owned by the trust for your lifetime, you are entitled to know that the trust exists and the nature of your interest. A beneficiary’s rights to information are based on the fiduciary duty of the trustees to keep the beneficiaries informed and to provide accounts, rather than on any equitable proprietary right. You will only be informed of the nature and existence of your interest if you are a real potential candidate for benefiting under the trust. the trust document and other documents appointing/retiring trustees or changing/adding assets to the trust; and. Advising beneficiaries on obtaining information on the way in which the trust had been administered, including the provisional trust accounts. However, the provision of financial information may be inappropriate. A beneficiary will normally be permitted to inspect and take copies of essential trust documents on the basis of the proprietary right he holds over them. It is therefore not unreasonable for you to request, and expect to receive, trust documents. From 2021, this efficiency will be lost for transactions involving the EU. Home The person in charge of administering the estate is called the executor . A question I am regularly asked is whether a beneficiary is entitled to see a copy of the will – often because a relative is attempting to deal with the estate themselves and information has not been forthcoming. Alternatively, the costs could be payable out of the trust if the Court considers this appropriate. The extent of a beneficiary's right to trust information was clarified in the case of Schmidt -v- Rosewood (2003). A discretionary trust is a trust in which your interest is not fixed, but is at the sole discretion of the trustees. Here are some key points to bear in mind whether you are a trustee or a beneficiary. The beneficiaries of the estate are the people entitled to receive those assets. However, beneficiaries have no right to any information beyond the inheritance they are to receive as defined by the will. legal advice. Under section 83A of the Trustee Act 19… have a right to seek trust documents, must now be seen as incorrect. Please note; you should always seek legal advice from an expert because its own facts will determine each matter. A beneficiary’s right to information in relation to the operation of an estate is historically steeped in English Law which has continued to inform Australian Law. Generally speaking, you should disclose the following to beneficiaries: Generally speaking, and provided you can justify not disclosing a document, you do not have to disclose the following: If there is no good reason to refuse, you ought to disclose the information or documents. on 07 August 2017. The nature of the interests held by the beneficiary seeking access: the more likely a beneficiary is to benefit from the trust, the stronger the claim for access. The new Trusts Act significantly changes the rights of beneficiaries to trust information. As a trust beneficiary, you may feel like you are at the mercy of the trustee, but depending on the type of trust, trust beneficiaries may have rights to ensure the trust is properly managed. As a beneficiary of a will you have limited rights. To obtain information of that kind, the beneficiary must make out a special case. To conclude, a beneficiary of a Guernsey trust always has the right to ask for information pertaining to the trust, and the trustees always have the duty to keep accounts. there is a legal reason to refuse disclosure (for example, if a document contains privileged legal advice); there is a commercial reason to refuse (for example, if a document contains commercially sensitive information); the document is confidential (for example, it might be relevant to one beneficiary but not another); the beneficiary has only a theoretical possibility of benefiting from the trust; and. Beneficiary Rights It is generally accepted that New Zealand has more formally settled discretionary trusts per head of capita than anywhere else in the world. A trust is an arrangement where one party (a settlor) gives the benefit of assets to another party (a beneficiary) while control and decisions relating to those assets lie with another party (the trustee). You may choose to decline all tracking cookies, but if you do some key features may not work as expected. In the past the rights of beneficiaries to access trust information has been said to be based on a ‘proprietary ownership’, in other words because the beneficiary owns an interest in the trust property, they also own an interest in the trust documents and information 1 . The executor of the estate is the person in charge of distributing the assets in the estate. If you are a beneficiary of an estate and have any questions during the course of its administration and you cannot get a satisfactory explanation from the executor, you would be wise to consult your lawyer in order to enforce your rights. We have experience of advising on the disclosure of information about a trust  from the perspectives of both a beneficiary seeking information and a trustee with concerns about what he should or should not disclose. However, trustees can sometimes be reluctant to disclose certain information about a trust or beneficiaries are unclear about what they are entitled to see. A trust is a legal arrangement through which one person, called a "settlor" or "grantor," gives assets to another person (or an institution, such as a bank or law firm), called a "trustee." If you are unsure whether to disclose information, you can apply to the Court for its directions, provided that you can justify incurring the costs doing so. You are not required to disclose the legal advice you obtain in order to defend a claim for breach of trust. You are not entitled to see trust documents simply because you are a beneficiary. The executors and trustees should give beneficiaries: Information relating to any benefit due to a beneficiary when requested by the beneficiary. In Erceg the Court held that the conduct of the beneficiary seeking disclosure was such that there was “genuine concern” as to the use of the information and ultimately the Supreme Court declined to grant the order for disclosure which included financial statements. That normal right does not extend to detailed information about the affairs of companies owned by the trust. Tags: Sets out guidance in case law, including the leading case of Schmidt v Rosewood Trust Ltd (Isle of Man) [2003] UKPC 26, on how trustees should deal with requests for different kinds of documents, and the basis on which trustees can refuse requests. Beneficiaries are entitled to a certain amount of information about the trust of which they are a beneficiary and trustees have a duty to disclose that information to them. It would be best if you considered what is in the best interests of the beneficiaries as a whole and what the purpose of the request is. If you fail to do so, a beneficiary can seek the accounts via the Court. What documents and information you require to achieve this is dependent on what kind of beneficiary you are and what type of trust you benefit under: If you have the right to receive income from the trust during your lifetime, or a right to live in a property owned by the trust for your lifetime, you are entitled to know that the trust exists and the nature of your interest. There are some circumstances in which a person might want to see certain trust documents to clarify what they may be entitled to, whether that is now or in the future. If the trustees refuse, you can consider making an application to the Court. It is also your right to have a trust administered in accordance with the trust document and general law. Equally, the trustees may be liable for costs if you are successful and the Court thinks the trustees’ refusal was unreasonable. The trustees decide whether or not you will ultimately benefit. You should exercise your discretion carefully, particularly if the advice relates to reasons for the exercise of your powers and discretions or a dispute between you and a beneficiary. Alternatively, trustees may be faced with requests for information from beneficiaries and are unclear about what they should or should not disclose for reasons of confidentiality or otherwise. You have discretion and should conduct a balancing exercise, considering all the relevant circumstances at the time. Trustee Survival Guide: Beneficiary Rights to Information - Navigating the Evolving Landscape part 2 21.08.2019 5 min read Data protection legislation and the Dawson-Damer litigation has undoubtedly caused concerns to trustees and their advisers. The rights of a beneficiary depend on the type of interest they have in the trust however all beneficiaries are entitled to certain information such as a copy of the trust deed. Below are the most frequently asked questions we see when we are dealing with the disclosure of trust documents and information. Margin schemes are very effective at keeping down VAT costs. Beneficiary rights to information - Answered by a verified Solicitor We use cookies to give you the best possible experience on our website. Generally speaking, beneficiaries have a right to see trust documents which set out the terms of the trusts, the identity of the trustees and the assets within the trust as well as the trust deed, any deeds of appointment/retirement and trust accounts. Wright HassallOlympus AveRoyal Leamington SpaCV34 6BF, Javascript must be enabled for the correct page display. Services for individuals - Private client and tax, beneficiaries’ entitlement to see documents, court procedure for disclosure of documents. As a beneficiary of a Will, you have the right to be notified that the Will is a valid document, that you have been named as a beneficiary and the details of what you have been left by the deceased. Beneficiaries with fixed rights under a trust have more rights to information than those under discretionary trusts. Home / © 2020 Penningtons Manches Cooper LLP.All rights reserved.Website design by Frontmedia / Dynamic Pear. Beneficiaries rights to information, Posted Whether there are issues of personal or commercial confidentiality: recognition should be given to the need to protect confidential information, and to whether the trust deed itself indicated that matters should be kept confidential. We look here at what they need to know and how they can obtain the information they need. Is A Beneficiary Entitled To See The Will? A beneficiary has the right to be able to ensure that a trust is administered legally and in accordance with its terms. A first-rate reputation, handling cases with calm diplomacy. The sorry saga of the failings at the Shrewsbury and Telford NHS Trust (STNHST) was subject to continued public scrutiny with the publication of the first Ockenden Report 11 December 2020. What documents and information you require to achieve this is dependent on what kind of beneficiary you are and what type of trust you benefit under: The first step is to ask the trustees for the information, which does not require the involvement of the Court. Similarly, a trustee may not know whether they should, or are even allowed, to release the information or documents requested. I am a beneficiary of a trust but have no information relating to the trust. The executor has a duty to keep you and any other beneficiaries informed and provide certain documentation, as well as to act in good faith – even if they are a beneficiary themselves. When you have questions about your rights as a beneficiary, you should ask an Expert for experienced assistance that … Certain beneficiaries must be provided with information as of right – e.g. Instead, the nature of a beneficiary's interest will be just one factor for consideration in determining whether or not it is appropriate to provide information to a given individual. The beneficiaries have vested rights to the trust income and/or assets. If your application is unsuccessful, you could be liable for the costs of the application (including the trustees’ costs). If you do not have a copy of the trust deed you can request one from the trustees. a life tenant about the trust income they are entitled to. There may be occasions where beneficiaries have concerns about the way in which the trustees are dealing with the trust and want further information about the trust. You are only entitled to information about your Inheritance and not details about another beneficiaries inheritance. In such circumstances, you run the risk of being ordered to pay personally (not from the trust fund) the costs of the beneficiary obtaining the order. While trusts were once allowed to more easily remain a secret, under the new Trusts Act trustees must disclose basic information to at least one beneficiary without a request being made . Strictly speaking beneficiaries do not really have ‘rights’. Beneficiaries with fixed rights under a trust have more rights to information than those under discretionary trusts. … You are not entitled to … the trust accounts. As someone with a financial interest in a trust, a beneficiary will generally have the right to certain information relating to how the trust functions. When someone passes away, they leave an estate, which is all their remaining assets. If the trustees are agreeable to this, it is normal for you to pay any necessary photocopying charges. However, a trustee owes certain duties to you, including keeping you informed and to provide you with accounts. Knowledge base / Katie specialises in contested wills, disputed estates and the removal and substitution of executors. As trustees, executors owe many duties. The position is similar if you may benefit under the trust in the future, for example where you will only benefit on the condition that you reach 25, or upon the passing of another beneficiary. Indeed, it may not even be necessary for the person requesting the information to be within the requesting an undertaking in relation to the use of the information disclosed. What is particularly sobering is the revelation that this is just the first report based on the investigation of 250 cases. It has been accepted legal principle for many years that estate documents “ belong ” to the beneficiaries and are in a sense the property of the beneficiaries. 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