Wingate v Butterfield Trust (Bermuda) Limited


Reference:
[2008] WTLR 357; costs at [2008] WTLR 543

Date:
14th December 2007

Court:
Supreme Court, Bermuda

Comment:

The plaintiff was a major discretionary beneficiary of a trust of which the defendant was, and had since 1979 been, the trustee. The plaintiff sought, by way of summary judgment application in his breach of trust claim against the defendant, disclosure of information and documentation relating to the trust’s affairs (in particular in relation to investments and distributions made by the defendant and in respect of the defendant’s remuneration and expenses) together with a common form account.

Held:

Bell J ordered disclosure of all the information and documentation referred to in the plaintiff’s application, on the basis that an important discretionary beneficiary was entitled to have his reasonable questions about the trust answered. The judge refused to exercise his discretion to order a common form account, because the information and documentation of which disclosure was ordered would provide much of the information that would be obtained by the taking of such an account.

The decision invokes the jurisdiction recognised in Schmidt v. Rosewood Trust Ltd to obtain information about a trust fund from its trustees. It was held that an interim application for disclosure can be made in pending breach of trust proceedings; that major beneficiaries should have their reasonable questions about a trust answered, by disclosure of relevant information and documentation; and that the right to information and documentation is ‘free-standing’ and not linked to any breach of trust claim, meaning that a trustee is not entitled to raise a limitation defence to counter such an application.

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