Assume X is an innocent discretionary beneficiary of an irrevocable non-testamentary trust with multiple permissible beneficiaries (the “trust”). Y is a not-so-innocent co-beneficiary, that is to say he has not been paying his just debts. The trustee being a fiduciary owes each a duty to keep the affairs of the trust confidential. Absent special facts, however, neither beneficiary owes the other such a fiduciary duty. Is there anything that X can lawfully do to prevent Y or Y’s creditors from subjecting X’s equitable property interest to public scrutiny? The Sergei Viktorovich Pugachev Case, [2015] EWCA Civ. 139 [England and Wales Court of Appeal (Civil Division)] suggests that at least when it comes to litigating issues such as whether the trust is a sham or whether the trustee is subject to the control of the defendant-beneficiary the other beneficiaries may have an uphill battle keeping the terms of the trust private. The trustee’s duty of confidentiality is covered generally in §6.2.3 of Loring and Rounds: A Trustee’s Handbook (2016) [pages 631-632], which is reproduced in its entirety below.
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