An Australian view on a Trustee’s duty to account and to keep records and identify just what records should be kept and to discuss what are trust documents

Abstract

Abstract This article reviews the law in England and Australia on the subject of a trustee’s duty to account and to keep appropriate records, and in that connection, what should be contained in a trustee’s minutes of deliberation and indeed what are, in fact, trust documents and the nature and extent of them. Related consideration is given to the ambit and extent of a beneficiary’s rights to information contained in trust documents. It should be noted that, where in this commentary the word “beneficiaries” is used, it is to be read as applying not merely those who are named as a beneficiary of the trust or who or which is a member of a class of beneficiaries but also as applying to all parties who are merely objects of a trust, i.e. those who can only benefit in consequence of the exercise of the trustee’s discretion. This application does not apply to the consideration and analysis of the law relating to inspection of trust documents, as will be abundantly clear later in this article. One other point must be made. This is that Australian unreported decisions and some reported decisions may not be readily available to UK readers. It is for this reason that certain lengthy extracts have been incorporated from some decisions as Annexures. Also in an article such as this, it makes sense to set out the extracts to assist in ease of absorption and comprehension.