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Disclosure, Trusts

The times they are a changing

Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone
If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’

Come writers and critics
Who prophesize with your pen
And keep your eyes wide
The chance won’t come again
And don’t speak too soon
For the wheel’s still in spin
And there’s no tellin’ who
That it’s namin’
For the loser now
Will be later to win
For the times they are a-changin’

Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside ragin’
It’ll soon shake your windows
And rattle your walls
For the times they are a-changin’

So wrote the Nobel Peace Prize for literature—for lyrics winner – Bob Dylan.

There is more change in the wind that just the prophecy of a Nobel Laureate.  Perhaps not contemplated by Bob Dylan, or maybe anybody, but the prospect of the most private of family details being made publically available in the future through publically searchable registers of trusts cannot be ruled out.

While in New Zealand trust privacy remains highly protected, this is not the case in other jurisdictions.  Consider France where a publically searchable register of trusts has been introduced and immediately challenged.   Following a legal challenge the French Constitutional Court (Conseil Constitutionnel Décision no.2016-591 QPC du 21 octobre 2016 3/3) issued a decision that provided that:

“A reference in a publicly accessible register of the names of the settlor, beneficiary and administrator of a trust provides information on how a person intends to dispose of his or her estate. This results in a breach of the right to respect for private life.”

The decision goes on to state that the legislature had not “limited the persons having access to data in the register” and that therefore the provisions being challenged “disproportionately interfere with the right to private life in light of the pursued objective” concluding that portions of the General Tax Code should be declared unconstitutional.

However, the decision is contentious – with some commentators arguing that only the ‘public’ aspect of the trusts register is unconstitutional and others arguing that the register itself (and not only its public nature) is unconstitutional.

This is hair-splitting, no matter how fine or important the hair.  The important message is that financial privacy is increasingly coming under scrutiny and the wise amongst us need to balance choice of assets ownership with the disclosure obligations inherent in the different options.

They times, they are indeed a-changin’.

References:

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