Breakspear and others v Ackland and Another: ChD 19 Feb 2008

Beneficiaries sought disclosure of a wishes letter provided by the settlor to the trustees in a family discretionary trust.
Held: The confidentiality in the letter was, in the absence of some express term by the settlor, in the trustees, and they were under no obligation to disclose it. Briggs J comprehensively considered the law of England on the issue of disclosure of wish letters in the context of discretionary trusts. It was best to approach requests for disclosure as calling for the exercise of a discretion, rather than adjudication upon a proprietary right. The discretion would be exercised in accordance with what was judged to be the best interests of the beneficiaries and the due administration of the trust, and on the basis of an assessment of the objective consequences of disclosure rather than by reference to the subjective purpose for which the disclosure was sought. He emphasised that disclosure should not be assumed to be automatic.[23] The exercise of discretionary dispositive powers by trustees is inherently confidential, and this confidentiality exists for the benefit of beneficiaries rather than merely for the protection of the trustees.[24] Certain documents, particularly memoranda of wishes, are brought into existence for the sole purpose of facilitating an inherently confidential process. He disagreed with the proposition that the general trend was towards disclosure, at least in relation to memoranda of wishes.

Briggs J
[2008] EWHC 220 (Ch), Times , [2009] Ch 32, [2008] 3 WLR 698, (2007-08) 10 ITELR 852, [2008] 2 All ER (Comm) 62, [2008] WTLR 777
England and Wales
AppliedIn re Londonderry’s Settlement; Peat v Lady Walsh CA 3-Nov-1964
The Court considered limitations on the right to disclosure of trust documents, and in particuar the need to protect confidentiality in communications between trustees as to the exercise of their dispositive discretions, and in communications made . .
CitedVadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .

Cited by:
CitedDawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .

Lists of cited by and citing cases may be incomplete.


Updated: 22 January 2022; Ref: scu.264596