Beneficiaries, executors, trustees, and privilege

Update, 19 August 2009: See now also Gray v BNY Trust Company of Australia Limited (formerly Guardian Trust Australia Limited) [2009] NSWSC 789.

Original post: In the last post, I mentioned that the claimant beneficiary was not allowed to see the solicitor’s file, despite having initiated a costs dispute with the executor’s solicitor. A recent decision of the Supreme Court of Western Australia spells out the law on the question: Murray v Schreuder [2009] WASC 51.  The law is:

58  In the case of a non-discretionary trust, … a beneficiary has a right – subject to exceptions – to inspect trust documents used by the trustee in the administration of the trust.  An exception will arise in the case of documents which are private to the trustee that may evidence the reasons that the trustee has made his or her decision or exercised a discretion, in circumstances where disclosure is not required and has not been made by the trustee:  Hartigan v Rydge (434, 442, 445); or where the document is the subject of a duty of confidence owed to a third party:  see, for example, Hartigan v Rydge (433, 446); Schmidt (734); Morris v Morris (1993) 9 WAR 150, 154; or where disclosure is not in the interests of the beneficiaries as a whole:  Rouse v IOOF Australia Trustees Ltd (1999) 73 SASR 484, 499; or where the terms of the trust deed give rise to an express or implied limit on a beneficiary’s right of access to trust documents:  Hartigan v Rydge (446).

The whole of the reasons’ legal discussion of this issue is reproduced below. Continue reading “Beneficiaries, executors, trustees, and privilege”