https://jade.io/article/1044964
[A decision by Honourable Justice Larissa Strk a Judge of the Supreme Court of Western Australia refusing access to a son of his deceased mother’s bank records from surviving de facto partner]
The plaintiff was the son of the deceased and sought access to her bank records from the defendant who had been granted letters of administration as the deceased’s de facto partner. The administrator refused. The son sought a court order to obtain records to determine whether the deceased’s funds were misused during the time the deceased was deemed incapable of managing her affairs.
The plaintiff argued the administrator is a trustee and that he was a trust estate beneficiary with a right to inspect trust documents. The defendant disputed he was such a trustee and the court found the administrator was not a trustee ‘in the strict sense’ yet, as the estate administration was not complete.
While the defendant did not become a trustee in the strict sense upon his appointment as administrator, as observed by Viscount Radcliffe in Commissioner of Stamp Duties (Qld) v Livingston at 17, the estate property was (and is) held by him ‘… for the purpose of carrying out the functions and duties of administration, not for his own benefit; and these duties would be enforced upon him by the Court of Chancery, if application has to be made for that purpose by a creditor or beneficiary interested in the estate. Certainly, therefore, he was in a fiduciary position with regard to the assets that came to him in the right of his office, and for certain purposes and in some respects he was treated by the court as a trustee …’
The court found the requested bank records were not trust property either.
The proprietary approach requires a proprietary interest in trust assets. The plaintiff does not have this in the bank records.
I would describe the requested bank records as being estate property, held by the defendant for the purpose of carrying out the functions and duties of administration, not for his own benefit. However, the requested bank records are not property in the defendant’s hands in which equity recognises or creates for the plaintiff’s benefit as a person entitled in distribution a beneficial interest during the course of administration.[72] The requested bank records are not trust property in the strict sense.
The court considered two approaches on beneficiary rights to trust documents – the proprietary approach and discretionary approach. Neither assisted this plaintiff.
The discretionary approach arises from the court’s supervision of trusts. But there is no trust here in the strict sense and the court is cautious in extending beneficiary rights to access documents to this context.
.. while the authority of the court as a court of equity to compel the provision of information by a trustee of a trust is well settled, there has been considerable debate (particularly in the context of discretionary trusts) as to whether the right of inspection of trust documents arises because the discretionary object has an equitable proprietary right or interest in the trust documents, or whether it rests upon the exercise of a discretion based upon the fiduciary duty of a trustee to keep the discretionary object informed when requested to do so, and to render accounts. As was observed in Wright v Stevens, the Australian position on whether a discretionary object has an entitlement to access documents remains unsettled.
The application was refused on the basis argued because the court found the plaintiff had not established a right as a beneficiary to access the requested bank records from the administrator.