Trevor Todd and Jackson Todd have over 60 years combined experience in resolving estate disputes including matters pertaining to executors and trustees.
Re Yorkiw Estate 2025 BCSC 1026 had the following to say about an executor’s duty to retain records:
Any trustee, but especially an institutional trustee charging for its services, has an obligation to maintain a file of trust documents. In an era in which most business is done electronically — sometimes by email, sometimes by text message, and sometimes perhaps by even more transitory electronic communication — this can pose challenges. If these communications have not been retained in a single, easily searched, repository, it may turn out to be time-consuming and expensive to reconstruct the “file” after the fact.
[6] But that is why trustees should have procedures for electronic record retention, communicated to the beneficiaries at the outset. It is the trustee that has the obligation of ensuring the integrity of its file and it is the trustee that has the ability to put records management systems in place. The beneficiaries own the file, with the exceptions that are provided for by the caselaw. With proactive record management, it is not clear to me why that should be particularly onerous. Storage is cheaper and search is more sophisticated than it ever has been. If reconstructing the file is expensive or time consuming, then that indicates that prior planning was not adequate.
[7] Courts will defer to a trustee’s reasonable record management and retention policies, but they are not going to be sympathetic to an institutional trustee coming back and saying it is no longer possible to conceptually determine what the “file” is, especially in the absence of evidence of diligence on the institutional trustee’s part.
[8] That being said, I do need to try to clarify the conceptual issue of what the “file” is. As a starting point, it is the totality of trust documents. To determine what the file is, therefore, it is necessary to ask what makes a record (i.e., a medium encoding information) a “trust document”.
[9] This was addressed by Lord Justice Salmon in very different technological circumstances in Re Londonderry’s Settlement, [1964] 3 All E.R. 855. In that case, the English Court of Appeal had to address the apparent conflict between the principle that trustees are not obliged to provide reasons to beneficiaries for discretionary decisions to allocate trust resources with the principle that beneficiaries have a proprietary interest in, and therefore a right to see, all trust documents. If the trustees recorded a communication among themselves, were the beneficiaries entitled to see it? The first principle suggested “no”, while the second principle suggested “yes”.
[10] They answered this dilemma by saying that there is a right to see the trustee’s file, but that it has exceptions. Records can be withheld or information within records can be redacted if, but only if, there is a rule such that the beneficiary is not entitled to that information. If there is no such rule, then the record is held for the benefit of the beneficiary, and they therefore have an equitable proprietary interest in it, including the ”right to see” the record.
[11] This principle is distinct from the right of litigants to document discovery, which is both narrower (since the beneficiary’s “right to see” does not require relevance to a material fact in dispute) and broader (since categories of exception to the principle that a beneficiary is entitled to see trust documents are not necessarily privileges).
[12] In his speech, at p. 863, Lord Justice Salmon made the point that what matters is not really the document, but the information encoded in it. He declined to define trust documents definitively, but he pointed to two characteristics — namely that the document is in the possession of the trustee and that it includes information about the trust that the beneficiaries are entitled to know — that lead to the conclusion that the beneficiaries have a proprietary interest in the documents and are entitled to see them. He went on to say that since what matters is the information, if there is information in such documents that beneficiaries are not entitled to see – in that case, reasons for discretionary disbursements – then the document could be redacted.
[13] Lord Justice Salmon’s speech has been taken to provide a definition of “trust document”, namely, a document in the possession of the trustee containing information about the trust, not subject to some rule permitting withholding.
[14] Applying the principle of technological neutrality, this means that all physical and electronic records in the possession or control of the trustee that contain information about the trust are trust documents (and therefore in the “file”), unless:
- a) They are “transitory” records. This would be records of a form that the trustee sets out in advance that it will not retain because the information is either duplicative or unimportant. These transitory records are not part of the “file” if they are, in fact, deleted or made inaccessible. The legitimacy of having rules providing for non-retention of transitory documents arises because this may be in the interests of the beneficiaries, for example, if retention is expensive.
- b) They are within a category of exception to the principle that beneficiaries are entitled to see trust documents. As I identified in my prior decision, one such category would be documents subject to solicitor-client privilege where the trustee can maintain a separate interest from the beneficiary in the legal advice. While it would be best practice to identify these categories in advance and to set up information retention systems based on those categories, this is not required.
[15] Unless all the information contained in a record is within one of these exceptions, the record is a “trust document” if it contains information relating to the trust and is in the possession of the trustee. So the “file” comprises all such records. The exceptions are set out in the case law. If there are to be any further exceptions, this must be explained to the beneficiaries at the outset, the exception must be in the interest of the beneficiaries (for example, by reducing expense) and the records must not relate to information necessary to accounting for the management of the trust.
