PART 3 Notifying beneficiaries of their interest
3.1 Hand in hand with the rights of a beneficiary to information about the trust is his right to be made aware that he is a beneficiary at all. The English law on this subject is not free from doubt, but the currently accepted view appears to be:
(i) A beneficiary under a fixed trust is entitled to be told that he is a beneficiary. This will of course in most cases be apparent from the receipt of income or capital from the trust. In Hawkesley v May [1956] 1 QB 304, trustees who failed to inform a beneficiary, on reaching majority, that he had an interest under a settlement, were held to be in breach of trust (although they were excused from liability as they had acted throughout honestly and reasonably).
(ii) A beneficiary under a discretionary trust does not appear to have an absolute right to be told of his status. However, Professor Hayton argues convincingly that "since the beneficiary's entitlement to put his case to the trustees for the exercise of their discretion in his favour is of no effect unless he is aware of it, and since he cannot be expected to become aware of it unless the trustees draw it to his attention it must surely be a necessary incident of the trustee-beneficiary relationship that the trustee must take reasonable steps to make a discretionary beneficiary aware that he be such." What comprise ‘reasonable steps' will inevitably depend upon the size, nature and location of the class.
(iii) A person who is the object of a power of appointment is not, however, entitled to be informed of his legal position: see Templeman J in Re Manisty [1974] l Ch 17, 25. Unlike the beneficiary under a discretionary trust, he has no right to request that the trustees consider his case.
3.2 The requirement that beneficiaries be aware of their beneficial entitlement is in many ways central to the concept of trust enforceability. As the trust is an instrument of the private law, its viability depends upon beneficiaries being able to bring proceedings against the trustees, and such action is only possible once beneficiaries are aware of their status.
3.3 Although the Jersey Law makes no express provision in this regard, we believe that the difficulties of legislating on this point (defining the various kinds of trust and explaining precisely what the beneficiary is entitled to know) would outweigh the advantages. As the English trust principles already underpin the Jersey law of trusts, and can be applied on a flexible basis to each individual case, it is open to frustrated beneficiaries to use them and make demands of information from the trustees.