High Court clarifies trust distribution where original documents missing

The High Court's recent decision in Francis Andre Malcolm Cook & Anor v No Defendant provides significant guidance on trust fund distribution when original trust documentation cannot be located. The case concerned the estate of Patricia Fassam, who died on 22 November 2022, and a life assurance policy worth £168,000 held within a missing trust instrument.

Background and procedural framework

Francis Andre Malcolm Cook and John Charles Redwood, acting as executors of the deceased's estate, initiated proceedings under CPR Part 8 without naming a defendant on 1 July 2025. This procedural route permits claims where court directions are sought on specific issues without adversarial proceedings, enabling judicial determination based solely on presented evidence.

The executors faced a distinctive challenge: whilst the life assurance policy was demonstrably held in trust, the original trust documentation from 1987 could not be located. This created uncertainty regarding both the trust's terms and the identity of intended beneficiaries, potentially exposing the executors to personal liability if they distributed funds incorrectly.

Trust history and evidence

Patricia Fassam had established multiple trusts during her lifetime, beginning with the problematic 1987 trust and continuing with documented trusts in 1992 and 2009. The later instruments consistently favoured her surviving son, Jason, suggesting a pattern of testamentary intention. However, the executors required judicial confirmation before proceeding with distribution of the £168,000 policy proceeds.

The evidence comprised witness statements from both executors and legal opinions examining the available documentation. Whilst the original trustees and precise terms of the 1987 trust remained unclear, the contextual evidence from subsequent trust arrangements indicated Patricia Fassam's consistent intention to benefit Jason primarily.

Legal principles and precedent

The court examined established precedent regarding lost trust documentation, with particular reference to Hansell v Spink, where secondary evidence was deemed sufficient for determining beneficiaries despite absent primary documentation. This line of authority recognises the practical reality that trust instruments may be lost whilst their existence and general purpose remain demonstrable.

The legal framework allows courts to make determinations based on available evidence where original documents cannot be produced, provided the secondary evidence meets requisite standards of reliability and consistency.

Judicial determination

HHJ Paul Matthews acknowledged that whilst absolute certainty regarding Jason as sole beneficiary could not be established, the available evidence created a reasonable presumption of his status as the primary intended recipient. The judge considered the pattern of the deceased's trust-making behaviour and the consistent favourable treatment of Jason in documented instruments.

Rather than requiring definitive proof, the court applied practical principles recognising the realities of estate administration where documentation may be incomplete or lost over extended periods.

Benjamin order and protective measures

The court granted a Benjamin order, permitting the executors to distribute the policy proceeds to Jason whilst protecting them from personal liability should unknown beneficiaries subsequently emerge. This established mechanism balances the need for practical estate administration against potential third-party claims.

The order provides statutory protection for personal representatives acting in good faith based on available evidence, removing the paralysis that might otherwise prevent estate distribution pending absolute certainty regarding beneficiaries.

The judgement affirms that executors, acting as personal representatives, retain entitlement to indemnity from the deceased's estate for reasonable costs incurred in obtaining necessary judicial directions. This principle ensures that proper administration of estates is not deterred by potential personal financial exposure for executors seeking appropriate court guidance.

This decision reinforces established principles governing trust distribution where documentation is incomplete, providing practical guidance for estate administration whilst maintaining appropriate safeguards for unknown potential beneficiaries.

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