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Family Trust – Memorandum of Wishes – No confidentiality with respect to beneficiaries

March 2021

In a recent decision of the High Court, the applicant son (C) sought an order that the Trustees of his late father’s Trust disclose documents relating to the Trust including a Memorandum of Wishes from his father. C is only one of two living discretionary beneficiaries of the Trust and the only non-Trustee beneficiary. The Trustees indicated that the father wanted to keep the Memorandum confidential. 

During the case evidence was given that the Trustees had made a distribution of funds, in accordance with the Memorandum, to a non-beneficiary of the Trust. The Court could not determine, on the evidence available, the amount of the distribution made.

The Court held that a Memorandum of Wishes does not override the terms of the Trust Deed and that even if the memorandum does impose an obligation of confidence, that obligation was not sufficient to permit the Trustees to resist the disclosure application. An order was made for full and comprehensive disclosure to C