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 test is whether the assets in the trust should be regarded by the Court as a "resource". These assets are held in a discretionary trust in conventional form. It is a very useful description of general application in cases like this. And as Lloyd LJ on the same occasion pointed out the assets in the trust "could be available to him on demand without being his money", as Mr Singleton was constrained to agree.

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.

There is no conceptual difficulty under the DPA arising from the fact that TW is an agent. The critical point is that TW is a data controller. As a firm of solicitors, TW can and must claim privilege to which the client is entitled. The trustee has not waived its privilege, and TW cannot (unless instructed to waive privilege) properly do so for them when acting on the Request. It could do so in legal proceedings brought against them.

Under Saudi Arabian law, an equivalent of forced heirship means that her entitlement will be fixed: she will receive one-fifth of his estate upon his death subject to a 1/8 th deduction if he has a surviving widow, but on the death of whom, W would also be entitled to a 1/5 th share of her estate. Whilst I cannot speculate about the true extent of her father's wealth, he is – by common consensus – enormously wealthy and she is likely to inherit a substantial fortune on his death.