Letter of Wishes in UK Law

Their Lordships consider that the more principled and correct approach is to regard the right to seek disclosure of trust documents as one aspect of the court's inherent jurisdiction to supervise, and if necessary to intervene in, the administration of trusts.

Superficially the question is easily framed as being whether the trust is a financial "resource" of the husband for the purpose of s. 25(2) (a) of the Matrimonial Causes Act 1973, "the Act of 1973". In my view, when properly focussed, that central question is simply whether, if the husband were to request it to advance the whole (or part) of the capital of the trust to him, the trustee would be likely to do so.

When a settlor creates a settlement he purports to divest himself of assets in favour of the trustee, and the trustee accepts them on the basis of the trusts of the settlement. I cannot understand on what basis a third party could claim, merely by reference to the unilateral intentions -of the settlor, that the settlement was a -sham and that the assets in fact remained the settlor's property. To set that sort of case up the donee must also be shown to be a party to the alleged sham.

The third category of case in which the question of disclosure may arise is in the context of existing litigation about an issue in respect of which the wish letter is alleged to be a relevant document. In that context, disclosure of wish letters is merely an aspect of the general law and practice as to disclosure. Generally speaking, relevance and necessity are the governing criteria and confidentiality plays a very subordinate role.

If one tests the proposition further by applying the criteria set out by Jacob J in Robin Ray, in my judgment, it is equally clear that it is necessary to infer that the software was partnership property. The software was the foundation of the business without which there would have been no business at all.

The concept of maintenance is no doubt broad, but the distinction made by the differing paragraphs of section 1(2) shows that it cannot extend to any or every thing which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living. The summary of Browne-Wilkinson J in In re Dennis, deceased [1981] 2 All ER 140 at 145–146 is helpful and has often been cited with approval:

It was not correct to say of the wishes of the deceased that because Parliament has provided for claims by those qualified under section 1 it follows that that by itself strikes the balance between testamentary wishes and such claims (para 51(iv)). They may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors.