Section 90
of International Trusts Order, 2000
Section 90
(1)
Subject to the terms of the trust instrument and subsection (2) –
(a)
trustees of trusts declared inter vivos or otherwise shall be under a legal obligation to take reasonable steps to inform each beneficiary who has, but may not be aware of having, a vested interest under the trusts
(whether or not in possession and whether or not subject to defeasance)
of the existence of the trusts and of the general nature of that interest;
and
(b)
at any time when there are no beneficiaries with such vested interests, trustees of trusts declared inter vivos or otherwise shall be under a legal obligation to take reasonable steps to ensure that at least one person who is capable of enforcing the trusts (whether as a beneficiary with a contingent interest, or as the object of a discretionary power, or otherwise howsoever) is aware of the existence of the trusts and of the general nature of the interest entitling him to enforce them.
(2)
When a beneficiary entitled to information under subsection (1)(a) is a minor or is determined by the trustees acting in good faith to be of unsound mind –
(a)
the trustees shall give information under subsection (1), not to the beneficiary, but to the parents or duly appointed legal guardians of the minor beneficiary, or (as the case may be) the duly appointed receivers, conservators, curators or other legal representatives of the beneficiary determined by the trustees to be of unsound mind; and
(b)
notwithstanding the foregoing provisions of this section, no information shall be given if the trustees in their absolute discretion consider that it would not be in the best interest of the beneficiary to give it.
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BLUV as at 16th December 2010
(3)
Save as provided by subsection (1)(b), and unless a person vested by the trust instrument with power to request or approve disclosure requests or approves such disclosure, trustees shall be under no legal obligation to disclose the existence of their trusts to –
(a)
any beneficiaries who are interested only contingently on their surviving other beneficiaries or the settlor, or on the occurrence of other events; or
(b)
any persons who are only objects of discretionary powers; or
(c)
any other persons whomsoever, whether beneficiaries or not, who are not entitled to vested interests (whether or not in possession and whether or not subject to defeasance) under the trusts.
(4)
Subject to the provisions of subsection (9), trustees may nonetheless in their absolute discretion without any such request or approval disclose the existence of their trusts to such persons as are mentioned in subsection (3)(a), (b) or (c) if such disclosure is necessary or convenient in connection with distributions to such persons, or if the trustees in their absolute discretion consider such disclosure to be in the interest of the trust as a whole.
(5)
The following provisions shall have effect with respect to the disclosure of documents –
(a)
unless a person vested by the trust instrument with power to request or approve disclosure requests or approves such disclosure, trustees shall be under no legal obligation to disclose to any such persons as are described in subsection (3)(a), (b) or (c) the documents described in subsection (6) or any other documents or information;
(b)
subject to the provisions of subsection (9), trustees may nonetheless in their absolute discretion, without any such request or approval, disclose the documents described in subsection (6) and any other information about their trusts to any such persons as are described in subsection
(3)
, (b) and (c) at the expense of those persons;
(c)
subject to the provisions of subsection (5)(d), trustees shall be under a legal obligation at the request and expense of any beneficiaries having vested interests under the trusts (whether or not in possession and whether or not subject to defeasance) to disclose to such beneficiaries the documents described in subsection (6);
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BLUV as at 16th December 2010
(d)
in the case of minor beneficiaries and those determined by the trustees to be of unsound mind, the provisions of subsection (2) shall have effect in relation to the disclosure of documents under subsection (5)(c) as they do in relation to the giving of information under subsection (2);
(e)
subject to the provisions of subsection (9), trustees may in their absolute discretion disclose to any beneficiaries having such vested interests as are described in paragraph (c) any other information about the trust property and its administration.
(6)
The documents referred to in subsection (5) are –
(a)
the trust instrument and all other documents in which the terms of the trust or any exercise of any trust, power or discretion are to be found;
(b)
all financial statements of the trust; and
(c)
all financial statements of companies wholly owned by the trustees as trustees of the trust.
(7)
When disclosing any documents or information to any beneficiary or other person the trustees shall, if other beneficiaries have requested confidentiality or if the trustees in their absolute discretion determine confidentiality to be in the best interest of such other beneficiaries, take all reasonable steps to secure the right to confidentiality of the other beneficiaries by providing such beneficiary or other person only with such documents or information as enable that beneficiary’s own true entitlement and actual interest or benefits under the trust to be determined; such documents and information may include copies or certified extracts of the trust instrument or other documents and copies of advices or statements from which the names and interests of other beneficiaries have been edited or deleted in order to preserve the confidentiality to which such other beneficiaries are entitled.
(8)
Notwithstanding anything to the contrary in this section, trustees shall not be bound or compelled by any process of discovery or inspection or under any equitable rule or principle to disclose or produce to any beneficiary or other person any of the following documents, that is to say –
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BLUV as at 16th December 2010
(a)
any memorandum or letter of wishes issued by the settlor or any other person to the trustees, or any other document recording any wishes of the settlor; or
(b)
any document disclosing any deliberations of the trustees as to the manner in which the trustees should exercise any discretion of theirs or disclosing the reasons for any particular exercise of any such discretion or the material upon which such reasons were or might have been based;
or
(c)
any other document relating to the exercise or proposed exercise of any discretion of the trustees, including legal advice obtained by them in connection with the exercise by them of any discretion.
(9)
Without prejudice to the provisions of subsection (10), no disclosure of the kind otherwise required or permitted by subsections (4), (5)(b) or (5)(e) shall be made by trustees in breach of any prohibition or restriction of such disclosure contained in the trust instrument.
(10)
No such prohibition or restriction, and nothing in this section, shall prejudice the validity of any trusts or the entitlement of any beneficiaries who have in any manner become aware of any trusts to obtain orders of the Court for administration or accounts, or for the execution of the trusts, or any other order of the Court not being an order for the discovery, inspection, disclosure or production of such documents as are described in subsection (8), or for any information or disclosure which by subsections (2)(b), (3), (5)(a) or (9) trustees are under no legal obligation to make.
Validation of appointments where objects are excluded or take illusory shares.