What Constitutes a Trust File?
1. Introduction
The recent case, Re Yurkiw Estate,[1] addresses important questions about the information a trustee must maintain and disclose to the beneficiaries of the trust.
2. Facts
The deceased had two children, Benjamin and Bethany. Heritage Trust Company Inc is the Trustee of the estate. Benjamin brought an application requiring the Trustee to produce copies of the trust file to him. On 21 November 2024 Justice JG Morley made an order (the ‘November Order’) which states in part that:
The entire file of the Executor, Heritage Trust Company Inc be disclosed to Benjamin Yurkiw and Ms Bethany Clark [the other beneficiary] if she requests it, with the exception of any documents over which solicitor client privilege can be claimed as against the beneficiaries.
Subsequently, Benjamin made another application for an order that the Trustee comply with the November Order by producing copies of the entire file to him as it relates to the estate, including the file of the trustee’s lawyers. He also seeks another order that the Trustee identify the basis of any redactions made in its disclosure.
The meaning of the phrase ‘entire file’ in the November order had become an issue, and it is clarified by Justice Morley in response to the second application.
3. Analysis and Judgment
Justice Morley began his analysis by noting that any trustee, but especially a institutional trustee, has a duty to maintain a file of trust documents. This can be a challenge when many communications are sent electronically but the trustee should have procedures in place for electronic record retention and management. The trustee has the duty to maintain such a file for the beneficiaries who are the owners of it, subject to certain exceptions. Courts will not be sympathetic to an institutional trustee that fails to retain electronic documents properly and is consequently unable to determine what constitutes the trust file.
Justice Morley cited the well-known case, Re Londonderry’s Settlement.[2] In that case the Court of Appeal for England and Wales held that trustees are not required to disclose, inter alia, their reasons for the exercise of their discretion to distribute trust assets among the beneficiaries, but subject to exceptions they are entitled to see the trustee’s file. However, Lord Justice Salmon went on to state that beneficiaries have a proprietary interest in all trust documents and are therefore entitled to see them, including recorded communication between the trustees.
In passing, I note that in Schmidt v Rosewood Trust Ltd[3] the Privy Council disagreed with Lord Justice Salmon’s opinion that the beneficiaries have a proprietary interest in the trust file. The Board held that the right to seek the court’s assistance in gaining access to trust documents does not depend on the beneficiaries having a beneficial (proprietary) interest. Rather, it depends on the court’s discretion, which may be exercised in favor even of the holder of a mere power.
Although the Court of Appeal did not define the phrase ‘trust document’ in Londonderry, it is generally understood that the term means a document held by the trustee that contains information about the trust and that is not subject to a rule that permits the trustee to withhold it.
Consequently, Justice Morley concluded that all physical and electronic records held by the trustee, which contains information about the trust are trust documents, unless:
- they are ‘transitory’ records with respect to which the trustee tells the beneficiaries that it will not retain them; or
- they fall within exceptions to the rule that beneficiaries are entitled to see trust documents, such as documents subject to solicitor-client privilege and other exceptions established by the case law.
If there are further exceptions, the trustee must disclose them to the beneficiaries, and they must be in the interest of the beneficiaries.
Justice Morley then considered the issue of privacy protection. It was raised by Bethany, who informed the court that there is conflict between her and Benjamin, and it may happen that certain information should not be shared by both of them, such as full bank account numbers.
Justice Morley agreed that maintaining privacy between beneficiaries is important. Therefore, he held that so long as the Trustee acts in an even-handed way with both beneficiaries in maintaining privacy interests, and so long as the personal and private information is not necessary to an accounting for the management of the trust, the Trustee may redact information that is personal or confidential.
Justice Morley went on to hold that since the Trustee failed to comply with the November order, it should bear the costs of this application, without the right to be indemnified by the trust.
Accordingly, Justice Morley granted the orders requested. With respect to redactions of personal information, he directed that they should be symmetrical as between the two beneficiaries, that there should be a reasonable privacy interest in the personal information, and that the redacted personal information must not be necessary for the beneficiary to get an accounting.
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[1] 2025 BCSC 1026.
[2] [1964] 3 ALL ER 855.
[3] [2003] UKPC 26, [2003] AC 709, para [51].
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Written by: Albert Oosterhoff
Posted on: October 1, 2025
Categories: Commentary, WEL Newsletter
1. Introduction
The recent case, Re Yurkiw Estate,[1] addresses important questions about the information a trustee must maintain and disclose to the beneficiaries of the trust.
2. Facts
The deceased had two children, Benjamin and Bethany. Heritage Trust Company Inc is the Trustee of the estate. Benjamin brought an application requiring the Trustee to produce copies of the trust file to him. On 21 November 2024 Justice JG Morley made an order (the ‘November Order’) which states in part that:
The entire file of the Executor, Heritage Trust Company Inc be disclosed to Benjamin Yurkiw and Ms Bethany Clark [the other beneficiary] if she requests it, with the exception of any documents over which solicitor client privilege can be claimed as against the beneficiaries.
Subsequently, Benjamin made another application for an order that the Trustee comply with the November Order by producing copies of the entire file to him as it relates to the estate, including the file of the trustee’s lawyers. He also seeks another order that the Trustee identify the basis of any redactions made in its disclosure.
The meaning of the phrase ‘entire file’ in the November order had become an issue, and it is clarified by Justice Morley in response to the second application.
3. Analysis and Judgment
Justice Morley began his analysis by noting that any trustee, but especially a institutional trustee, has a duty to maintain a file of trust documents. This can be a challenge when many communications are sent electronically but the trustee should have procedures in place for electronic record retention and management. The trustee has the duty to maintain such a file for the beneficiaries who are the owners of it, subject to certain exceptions. Courts will not be sympathetic to an institutional trustee that fails to retain electronic documents properly and is consequently unable to determine what constitutes the trust file.
Justice Morley cited the well-known case, Re Londonderry’s Settlement.[2] In that case the Court of Appeal for England and Wales held that trustees are not required to disclose, inter alia, their reasons for the exercise of their discretion to distribute trust assets among the beneficiaries, but subject to exceptions they are entitled to see the trustee’s file. However, Lord Justice Salmon went on to state that beneficiaries have a proprietary interest in all trust documents and are therefore entitled to see them, including recorded communication between the trustees.
In passing, I note that in Schmidt v Rosewood Trust Ltd[3] the Privy Council disagreed with Lord Justice Salmon’s opinion that the beneficiaries have a proprietary interest in the trust file. The Board held that the right to seek the court’s assistance in gaining access to trust documents does not depend on the beneficiaries having a beneficial (proprietary) interest. Rather, it depends on the court’s discretion, which may be exercised in favor even of the holder of a mere power.
Although the Court of Appeal did not define the phrase ‘trust document’ in Londonderry, it is generally understood that the term means a document held by the trustee that contains information about the trust and that is not subject to a rule that permits the trustee to withhold it.
Consequently, Justice Morley concluded that all physical and electronic records held by the trustee, which contains information about the trust are trust documents, unless:
If there are further exceptions, the trustee must disclose them to the beneficiaries, and they must be in the interest of the beneficiaries.
Justice Morley then considered the issue of privacy protection. It was raised by Bethany, who informed the court that there is conflict between her and Benjamin, and it may happen that certain information should not be shared by both of them, such as full bank account numbers.
Justice Morley agreed that maintaining privacy between beneficiaries is important. Therefore, he held that so long as the Trustee acts in an even-handed way with both beneficiaries in maintaining privacy interests, and so long as the personal and private information is not necessary to an accounting for the management of the trust, the Trustee may redact information that is personal or confidential.
Justice Morley went on to hold that since the Trustee failed to comply with the November order, it should bear the costs of this application, without the right to be indemnified by the trust.
Accordingly, Justice Morley granted the orders requested. With respect to redactions of personal information, he directed that they should be symmetrical as between the two beneficiaries, that there should be a reasonable privacy interest in the personal information, and that the redacted personal information must not be necessary for the beneficiary to get an accounting.
—
[1] 2025 BCSC 1026.
[2] [1964] 3 ALL ER 855.
[3] [2003] UKPC 26, [2003] AC 709, para [51].
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