Last updateTue, 24 Feb 2015 5pm

INTERNATIONAL TRUST LAW: Disclose or withhold?

12 May 2017  

Gillian Coumbe QC discusses a recent case where the New Zealand Supreme Court considered the principles governing disclosure of trust information to beneficiaries

The New Zealand Supreme Court’s judgment in Erceg v Erceg [2017] is notable for a number of reasons. First, the court upheld a blanket refusal by the trustees to give the appellant, a discretionary beneficiary, access to any trust documents. Although the appellant was a primary beneficiary of one of the two trusts, the court did not even permit him to see the trust deed or trust accounts. Secondly, the court adopted a flexible, continuum-based approach to disclosure, the strongest case for access involving a request for ‘core’ trust documents by a ‘close beneficiary’. In such a case there will now be an expectation of disclosure, unless there are exceptional circumstances. Thirdly, the court adopted an interestingly expansive appellate test, taking the view that an appeal court can make its own fresh assessment whether to order disclosure. Finally, the court considered the ability of a bankrupt discretionary beneficiary to seek trust information, an issue on which there is little prior case law.

Additional Info

  • Case(s) Referenced:

    Blades & ors v Isaac & anr [2016] WTLR 589

    Breakspear v Ackland [2008] WTLR 777

    Erceg v Erceg & ors [2016] WTLR 1575; [2017] NZSC 28

    Foreman v Kingstone [2004] 1 NZLR 841

    Ilott v The Blue Cross [2017] UKSC 17

    Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1

    Kennon v Spry [2008] HCA 56

    Re M and L Trusts [2003] WTLR 491

    Schmidt v Rosewood Trust [2003] WTLR 565; [2004] WTLR 887

    Re Y Trust [2014] (1) JRL 199