Introduction
A and 6 others v C and 13 others,[1] the recent Privy Council decision, is a very interesting case for at least two reasons. The first is that the Board heard the appeal from the decision of the Bermuda Court of Appeal in camera, a most unusual event. The second is that the Board was asked to resolve and did resolve a longstanding issue concerning offshore trust law, namely, what is the precise role of the trust protectors, the question being whether they have a broad (or wider) role or a narrow role in reviewing proposed decisions of the trustees, or as the Board phrased the question raised by the parties more specifically in para 1, the question is “whether the protectors are limited solely to reviewing the lawfulness of the trustees’ proposed exercise of their power, or whether the protectors are empowered also to use an independent discretion in deciding whether or not to consent, by reference to their own view of the merits of the trustees’ proposal.”
With respect to the first reason, the judgement was introduced by these reporting restrictions:
In accordance with the procedure followed under Bermudan law when these proceedings were before the courts in Bermuda, this appeal concerned with the administration of a family trust is being heard in private in order to protect the privacy and safety of the beneficiaries under the trust, who include children.
That was followed by this statement:
This appeal was heard in private. THE COURT ORDERED THAT nobody shall publish or reveal the name or address of any of the persons (including any companies) who are the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of those persons or any member of their family in connection with these proceedings.
With respect to the second reason, the Board noted that the issue to be determined is properly described as a default role because (1) the parties acknowledged that, in principle, a settlor may specify either role, and (b) it is typical of most offshore settlements, including the ones in this case, that they do not specify the role of the protectors when they are asked to consider a proposal of the trustees. So the issue was truly what the default role of protectors is when considering whether to consent or refuse to consent to a proposed exercise by the trustees of their powers.
It was common ground that the protectors in this case were all fiduciaries. And it was also common ground that the issue of which role the protectors have depends on the true construction of the settlements.
In its introductory comments, the Board also noted that the office of protector is commonly made part of offshore deeds of settlement but are uncommon in domestic settlements. The Board also explored the reasons why settlors of offshore settlements find the use of protectors advisable. In para 8 the Board noted that it is not difficult to understand why settlors, especially of family settlements, like protector provisions. While trustees of domestic settlements, who are often family members or trusted friends and are therefore familiar with the settlor’s family and can be expected to act in their best interests, trustees of offshore trusts often know little of the family. In contrast, protectors are typically closer to the settlor and the beneficiaries and can be counted on to ensure that the trustees will administer the trust for the benefit of the beneficiaries,
2. Facts
In the 1950s and following, Mr X and his relatives established a series of discretionary trusts. They are now held for the principal benefit of A and B and their families. The trusts have at least one of two Bermuda resident trust corporations as their trustees (“the X Trusts” and “the Trustees”). Some are governed by English law, some by Bermuda law, and one by Jersey law.
All except one of the X Trusts have broadly identical provisions for the appointment of one or more protectors, collectively referred to as “the Protector” or “the Protectorate”. The Trusts gave the Protectors two main powers. The first is to approve or refuse to approve the appointment of capital to the beneficiaries as proposed by the Trustees. The second is the power to approve or disapprove any dealing with, or exercise by the Trustees of voting powers derived from “Specified Securities”. The most important of those are shares in a company (“OpCo”), and the X Trusts own a large holding of them. The Trusts prohibit the Trustees from making such appointments or engage in such dealings unless the Protectors give their written approval. Subject to those requirements, the Trusts confer very wide discretionary powers of appointment of capital and income on the Trustees.
In the mid-1990s provisions for the appointment of protectors (“the Protector Provisions”) were added to all existing X Trusts, except one. This was done under a scheme (“Operation Protector”) in which the Trustees exercised their discretionary powers to move the administration of the X Trusts offshore from England, mainly to Bermuda. As a result, all the X Trusts with Protector Provisions have one of two companies as protectors, both of which were incorporated in Jersey.
In 2017 the Trustees of the X Trusts made proposals for the future of the Trusts that would allocate the aggregate property of the X Trusts as to 2/3 on A and A’s family (“the A Branch”) and 1/3 on B and B’s family (“the B Branch”) (“the Scheme”). Aspects of the proposals required the consent of the Protectors. In their opinion the Scheme did not serve the best interests of the beneficiaries. In reaching this opinion they assumed that theirs was the Wider Role.
In 2020 the Trustees issued a summons in the Supreme Court of Bermuda seeking approval of the court to their proposals on the ground that these flowed from a proper exercise of their powers. The B Branch opposed the application. So did the Protectors on the ground that they were inclined to refuse their consent to the Trustees’ proposals. The Supreme Court granted the orders sought by the Trustees.
In 2021 the Trustees issued a summons in the Supreme Court in which they sought declarations about the basis on which the Protectors are entitled to withhold their consent. They suggested three possibilities: (a) the Protectors are entitled to exercise an independent discretion, so that they may withhold their consent even if the exercise of the power by the Trustees is one that a reasonable body of properly informed trustees is entitled to make (the Wider Role); (b) the Protectors must satisfy themselves that the proposed exercise of the power by the trustees is one that a reasonable body of informed trustees is entitled to undertake, and if they are so satisfied, to consent to it (the Narrow Role); or (c) some other role.
The A Branch argued in favour of the Narrow Role, while the B Branch favoured the Wider Role. Kawaley AJ, sitting as Assistant Justice of the Supreme Court, held that the role of the Protectors was the Narrow Role and made a declaration accordingly. In a judgment in 2023, the Court of Appeal dismissed the appeal of the B Branch. Gloster JA delivered the lead judgment on the appeal. The B Branch appealed to the Privy Council. Lord Briggs and Lord Richards delivered the reasons of the Board.
3. Analysis and Judgment
Since the written terms of the X Trusts were substantially similar, the parties were able to present their arguments on construction of the Protector Provisions by reference to a single original deed of settlement and invited the Board to proceed on the basis that the true construction of that deed, made in 1951, should apply to all.
The Board began by setting out in redacted form the Schedule to the amended deed which contains the Protector Provisions. I shall not reproduce the provisions here but shall refer to them as necessary in the course of examining the Board’s reasons.
The Board considered the reasons of the Bermuda Court of Appeal and of other decisions on the role of protectors at length. It also considered several articles and texts that considered the issue.
Then the Board considered the relevant legal principles governing the construction of trust deeds. These were uncontentious and accepted by the parties. So also, the principles that apply to the implication of terms in an instrument were uncontentious. Therefore, I shall say no more about these matters at this point but will address them as they arise in the reasons. In any event, they are worth reading.
The Board then turned to the construction of the trust deeds in this case. The Board noted that commentaries and the parties in their presentation suggested that the Board must assume that the settlor must have had one or the other of the two roles (Narrow or Wider) in mind and that it is up to the Board to decide which. However, the Board considered this to be the wrong approach. In its view the question is not which of the two rules the settlor specified. Rather, as it stated in para 83, it must determine “what if any restraints did the trust instrument actually impose, construed in its context and with regard to any constraints imported by the general law?”
The Board disposed of two matters at the outset. The first is that the use of the words “protectors” of “protectorate” as labels is not helpful in answering the question. The second is that while the Protector Provisions in most of the settlements were introduced by the trustees rather than the settlors, this cannot be material to their construction. That is because the Protector Provisions were designed to introduce a common scheme of Protectors across all the X Trusts, and thus they had to be construed and used in the same way regardless of who introduced them into the settlements.
As mentioned above, the protectors were fiduciaries. Therefore, they had to exercise their powers (including the powers to veto proposals of the trustees) in that capacity and had to observe all constraints imposed on fiduciaries by the general law. The Board observed notably, “These are not constraints or duties imposed by equity, but rather they are taken by equity to be voluntarily undertaken by those who assume, accept or arrogate to themselves a fiduciary role.”[2] The main constraints, as the Board noted are the well-known no-profit and no-conflict duties,[3] and the duty to exercise their powers for proper purposes.[4] The Board went on to describe these well-known duties as follows in para 89:
Those constraints are formidable. In relation to the Protectors the first two require, in effect, that they exercise their powers selflessly, with single-minded loyalty to and regard for the interests of the beneficiary class, rather than to serve their own interests, or those of anyone else, such as the settlor. The proper purpose duty ensures for example that protectors do not use (or abuse) their powers of veto to cajole the trustees into accepting their views about other aspects of the administration of the trust about which the trustees have not sought, or may not even be obliged to seek, the protectors’ consent.
The Board did not accept the submission of counsel for the A Branch that the fiduciary status of the Protectors suggests that they are subject to the Narrow Role, because the rights and expectations of the discretionary beneficiaries under the settlement derive from the design and operation of the settlement as a whole. Since the settlor created a structure that requires the trustees and protectors to work together, it would be wrong to treat the beneficiaries’ rights as merely those that flow from the lawful performance of their role by the trustees alone. Thus, the Board went on to state in para 94:
… the fiduciary status of the Protectors does impose significant constraints upon the way in which they have to exercise their powers to approve or disapprove proposals for appointments and for dealings with Specified Securities put to them by the Trustees, but those constraints all operate within, and in harmony with, the Wider Role. They come nowhere near confining the Protectors to the Narrow Role, within any of the X Trusts.
The Board noted that the Protectors are paid professionals and are therefore required to act with reasonable care and skill under a professional duty of care. But this also does not confine them to the Narrow Role.
The Board went on to address the fact that the settlement confers many powers con the Trustees that are exercisable in their “discretion”. Further, the Protectors are given a power exercisable “in their absolute discretion” to determine whether an emergency exists before they can exercise their power to remove and appoint trustees. The Board noted that a wider reading of the settlements, in particular the Protector Provisions, shows that the word “discretion” is not at all used invariably in the description of what are clearly discretionary powers.
The Board summarized the question of construction as follows:
(i) The 1951 Settlement did not by any express language impose any constraints upon the Protectors in the exercise of their powers of veto over Trustees’ proposals for appointment or dealings with the Specified Securities.
(ii) By appointing Protectors as fiduciaries, the 1951 Settlement imported from the general law the usual fiduciary constraints affecting fiduciaries, encompassed by the no-profit, no-conflict and proper purpose duties. In relation to proposed “pick and choose” appointments, the Protectors were not constrained by a general duty to act in the interests of the beneficiaries as a whole from considering such proposals on their merits.
(iii) The 1951 Settlement contemplates, without necessarily requiring, the appointment of paid professionals as Protectors who would owe a professional duty of care in the exercise of their powers of veto, as is in fact the case, but this does not impede their consideration of relevant trustee proposals upon their merits.
(iv) The precise delineation of the Protectors’ powers of veto coupled with the absence of any wider constraints upon their exercise suggests that, as a matter of construction, no wider constraints were imposed.
(v) The constraints thus identified, though substantial, do not confine the Protectors to the Narrow Role.
The Board noted that the iterative process of construction now required it to check the above summary (which is based on the natural meaning of the words (or absence of words) of the Protector Provisions) against the wider considerations of the contextual background and against considerations of business efficacy and common sense. It concluded that there are no terms in the trust deeds or the Protector Provisions that support the Narrow Role. On the other hand, there are terms that provide significant support for the Wider Role. The Board considered some of those terms and noted in para 107:
-
- The matters requiring the Protectors’ consent thus represent particularly important decisions by the Trustees. It is readily apparent why the settlor might in those circumstances wish the Protectors to fulfil the Wider Role in the exercise of their power to give or withhold consent. What is not readily apparent is why, if the Narrow Role were intended, it should be restricted to those matters. If the Narrow Role were intended, it would more likely apply to a wider range of actions, or all actions, by the Trustees as any potential breach of trust is likely to be of concern to a settlor.
The Board noted that there are also other factors that support the Wider Role. It mentioned specifically the following. First, if the Narrow Role were intended, one would expect that appointment as a Protector would be restricted to those most qualified to assess the Trustees’ proposed action, such as a trust lawyer. Second, if only responsible persons would be appointed as Trustees, who could be relied upon to take advice from Protectors, why would the settlor want to provide for a Protector whose role would be limited to ensuring that the Trustees were acting lawfully?
The Board went on to consider whether a restraint limiting the Protectors to the Narrow Role could be identified under an implied term. It held that no such implied term could be recognized. Therefore, the Board concluded in para 119:
-
- Those responsible as settlors for implementing Operation Protector introduced into the X Trusts common form, carefully and professionally drafted Protector Provisions which conferred upon the Protectors, as fiduciaries, a power of veto over certain types of decision making by the Trustees. They chose not to set out expressly how (in terms of role) the Protectors were to decide whether to approve or disapprove proposals submitted to them by the Trustees for approval. The settlors must be taken to have known or been advised as to the constraints upon decision-making undertaken by the acceptance by the Protectors of fiduciary responsibilities in carrying out their allotted tasks. It must be inferred, as a matter of construction, that no further or narrower restraints were intended to be imposed. If the absence of a more precisely specified role for the Protectors may be seen by some as a gap in the Protector Provisions, it must be taken to have been a deliberate gap. It is not a gap which needs to be, or can be, filled by any implied term. And the Narrow Role cannot as a matter of construction be identified as having been imposed by any language used in the Protector Provisions, or in the X Trusts containing those provisions, viewed as a whole. There is simply no peg on which to hang the Narrow Role.
—
[1] [2026] UKPC 11.
[2] Citing Hopcraft v Close Bros Ltd [2025] UKSC 33, paras 82-110.
[3] Citing Rukhadze v Recovery Partners GP Ltd [2025] UKSC 10.
[4] Citing inter alia Grand View Private Trust Co Ltd v Wong [1922] UKPC 47.
Written by: Albert Oosterhoff
Posted on: June 30, 2026
Categories: Commentary, WEL Newsletter
Introduction
A and 6 others v C and 13 others,[1] the recent Privy Council decision, is a very interesting case for at least two reasons. The first is that the Board heard the appeal from the decision of the Bermuda Court of Appeal in camera, a most unusual event. The second is that the Board was asked to resolve and did resolve a longstanding issue concerning offshore trust law, namely, what is the precise role of the trust protectors, the question being whether they have a broad (or wider) role or a narrow role in reviewing proposed decisions of the trustees, or as the Board phrased the question raised by the parties more specifically in para 1, the question is “whether the protectors are limited solely to reviewing the lawfulness of the trustees’ proposed exercise of their power, or whether the protectors are empowered also to use an independent discretion in deciding whether or not to consent, by reference to their own view of the merits of the trustees’ proposal.”
With respect to the first reason, the judgement was introduced by these reporting restrictions:
In accordance with the procedure followed under Bermudan law when these proceedings were before the courts in Bermuda, this appeal concerned with the administration of a family trust is being heard in private in order to protect the privacy and safety of the beneficiaries under the trust, who include children.
That was followed by this statement:
This appeal was heard in private. THE COURT ORDERED THAT nobody shall publish or reveal the name or address of any of the persons (including any companies) who are the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of those persons or any member of their family in connection with these proceedings.
With respect to the second reason, the Board noted that the issue to be determined is properly described as a default role because (1) the parties acknowledged that, in principle, a settlor may specify either role, and (b) it is typical of most offshore settlements, including the ones in this case, that they do not specify the role of the protectors when they are asked to consider a proposal of the trustees. So the issue was truly what the default role of protectors is when considering whether to consent or refuse to consent to a proposed exercise by the trustees of their powers.
It was common ground that the protectors in this case were all fiduciaries. And it was also common ground that the issue of which role the protectors have depends on the true construction of the settlements.
In its introductory comments, the Board also noted that the office of protector is commonly made part of offshore deeds of settlement but are uncommon in domestic settlements. The Board also explored the reasons why settlors of offshore settlements find the use of protectors advisable. In para 8 the Board noted that it is not difficult to understand why settlors, especially of family settlements, like protector provisions. While trustees of domestic settlements, who are often family members or trusted friends and are therefore familiar with the settlor’s family and can be expected to act in their best interests, trustees of offshore trusts often know little of the family. In contrast, protectors are typically closer to the settlor and the beneficiaries and can be counted on to ensure that the trustees will administer the trust for the benefit of the beneficiaries,
2. Facts
In the 1950s and following, Mr X and his relatives established a series of discretionary trusts. They are now held for the principal benefit of A and B and their families. The trusts have at least one of two Bermuda resident trust corporations as their trustees (“the X Trusts” and “the Trustees”). Some are governed by English law, some by Bermuda law, and one by Jersey law.
All except one of the X Trusts have broadly identical provisions for the appointment of one or more protectors, collectively referred to as “the Protector” or “the Protectorate”. The Trusts gave the Protectors two main powers. The first is to approve or refuse to approve the appointment of capital to the beneficiaries as proposed by the Trustees. The second is the power to approve or disapprove any dealing with, or exercise by the Trustees of voting powers derived from “Specified Securities”. The most important of those are shares in a company (“OpCo”), and the X Trusts own a large holding of them. The Trusts prohibit the Trustees from making such appointments or engage in such dealings unless the Protectors give their written approval. Subject to those requirements, the Trusts confer very wide discretionary powers of appointment of capital and income on the Trustees.
In the mid-1990s provisions for the appointment of protectors (“the Protector Provisions”) were added to all existing X Trusts, except one. This was done under a scheme (“Operation Protector”) in which the Trustees exercised their discretionary powers to move the administration of the X Trusts offshore from England, mainly to Bermuda. As a result, all the X Trusts with Protector Provisions have one of two companies as protectors, both of which were incorporated in Jersey.
In 2017 the Trustees of the X Trusts made proposals for the future of the Trusts that would allocate the aggregate property of the X Trusts as to 2/3 on A and A’s family (“the A Branch”) and 1/3 on B and B’s family (“the B Branch”) (“the Scheme”). Aspects of the proposals required the consent of the Protectors. In their opinion the Scheme did not serve the best interests of the beneficiaries. In reaching this opinion they assumed that theirs was the Wider Role.
In 2020 the Trustees issued a summons in the Supreme Court of Bermuda seeking approval of the court to their proposals on the ground that these flowed from a proper exercise of their powers. The B Branch opposed the application. So did the Protectors on the ground that they were inclined to refuse their consent to the Trustees’ proposals. The Supreme Court granted the orders sought by the Trustees.
In 2021 the Trustees issued a summons in the Supreme Court in which they sought declarations about the basis on which the Protectors are entitled to withhold their consent. They suggested three possibilities: (a) the Protectors are entitled to exercise an independent discretion, so that they may withhold their consent even if the exercise of the power by the Trustees is one that a reasonable body of properly informed trustees is entitled to make (the Wider Role); (b) the Protectors must satisfy themselves that the proposed exercise of the power by the trustees is one that a reasonable body of informed trustees is entitled to undertake, and if they are so satisfied, to consent to it (the Narrow Role); or (c) some other role.
The A Branch argued in favour of the Narrow Role, while the B Branch favoured the Wider Role. Kawaley AJ, sitting as Assistant Justice of the Supreme Court, held that the role of the Protectors was the Narrow Role and made a declaration accordingly. In a judgment in 2023, the Court of Appeal dismissed the appeal of the B Branch. Gloster JA delivered the lead judgment on the appeal. The B Branch appealed to the Privy Council. Lord Briggs and Lord Richards delivered the reasons of the Board.
3. Analysis and Judgment
Since the written terms of the X Trusts were substantially similar, the parties were able to present their arguments on construction of the Protector Provisions by reference to a single original deed of settlement and invited the Board to proceed on the basis that the true construction of that deed, made in 1951, should apply to all.
The Board began by setting out in redacted form the Schedule to the amended deed which contains the Protector Provisions. I shall not reproduce the provisions here but shall refer to them as necessary in the course of examining the Board’s reasons.
The Board considered the reasons of the Bermuda Court of Appeal and of other decisions on the role of protectors at length. It also considered several articles and texts that considered the issue.
Then the Board considered the relevant legal principles governing the construction of trust deeds. These were uncontentious and accepted by the parties. So also, the principles that apply to the implication of terms in an instrument were uncontentious. Therefore, I shall say no more about these matters at this point but will address them as they arise in the reasons. In any event, they are worth reading.
The Board then turned to the construction of the trust deeds in this case. The Board noted that commentaries and the parties in their presentation suggested that the Board must assume that the settlor must have had one or the other of the two roles (Narrow or Wider) in mind and that it is up to the Board to decide which. However, the Board considered this to be the wrong approach. In its view the question is not which of the two rules the settlor specified. Rather, as it stated in para 83, it must determine “what if any restraints did the trust instrument actually impose, construed in its context and with regard to any constraints imported by the general law?”
The Board disposed of two matters at the outset. The first is that the use of the words “protectors” of “protectorate” as labels is not helpful in answering the question. The second is that while the Protector Provisions in most of the settlements were introduced by the trustees rather than the settlors, this cannot be material to their construction. That is because the Protector Provisions were designed to introduce a common scheme of Protectors across all the X Trusts, and thus they had to be construed and used in the same way regardless of who introduced them into the settlements.
As mentioned above, the protectors were fiduciaries. Therefore, they had to exercise their powers (including the powers to veto proposals of the trustees) in that capacity and had to observe all constraints imposed on fiduciaries by the general law. The Board observed notably, “These are not constraints or duties imposed by equity, but rather they are taken by equity to be voluntarily undertaken by those who assume, accept or arrogate to themselves a fiduciary role.”[2] The main constraints, as the Board noted are the well-known no-profit and no-conflict duties,[3] and the duty to exercise their powers for proper purposes.[4] The Board went on to describe these well-known duties as follows in para 89:
Those constraints are formidable. In relation to the Protectors the first two require, in effect, that they exercise their powers selflessly, with single-minded loyalty to and regard for the interests of the beneficiary class, rather than to serve their own interests, or those of anyone else, such as the settlor. The proper purpose duty ensures for example that protectors do not use (or abuse) their powers of veto to cajole the trustees into accepting their views about other aspects of the administration of the trust about which the trustees have not sought, or may not even be obliged to seek, the protectors’ consent.
The Board did not accept the submission of counsel for the A Branch that the fiduciary status of the Protectors suggests that they are subject to the Narrow Role, because the rights and expectations of the discretionary beneficiaries under the settlement derive from the design and operation of the settlement as a whole. Since the settlor created a structure that requires the trustees and protectors to work together, it would be wrong to treat the beneficiaries’ rights as merely those that flow from the lawful performance of their role by the trustees alone. Thus, the Board went on to state in para 94:
… the fiduciary status of the Protectors does impose significant constraints upon the way in which they have to exercise their powers to approve or disapprove proposals for appointments and for dealings with Specified Securities put to them by the Trustees, but those constraints all operate within, and in harmony with, the Wider Role. They come nowhere near confining the Protectors to the Narrow Role, within any of the X Trusts.
The Board noted that the Protectors are paid professionals and are therefore required to act with reasonable care and skill under a professional duty of care. But this also does not confine them to the Narrow Role.
The Board went on to address the fact that the settlement confers many powers con the Trustees that are exercisable in their “discretion”. Further, the Protectors are given a power exercisable “in their absolute discretion” to determine whether an emergency exists before they can exercise their power to remove and appoint trustees. The Board noted that a wider reading of the settlements, in particular the Protector Provisions, shows that the word “discretion” is not at all used invariably in the description of what are clearly discretionary powers.
The Board summarized the question of construction as follows:
(i) The 1951 Settlement did not by any express language impose any constraints upon the Protectors in the exercise of their powers of veto over Trustees’ proposals for appointment or dealings with the Specified Securities.
(ii) By appointing Protectors as fiduciaries, the 1951 Settlement imported from the general law the usual fiduciary constraints affecting fiduciaries, encompassed by the no-profit, no-conflict and proper purpose duties. In relation to proposed “pick and choose” appointments, the Protectors were not constrained by a general duty to act in the interests of the beneficiaries as a whole from considering such proposals on their merits.
(iii) The 1951 Settlement contemplates, without necessarily requiring, the appointment of paid professionals as Protectors who would owe a professional duty of care in the exercise of their powers of veto, as is in fact the case, but this does not impede their consideration of relevant trustee proposals upon their merits.
(iv) The precise delineation of the Protectors’ powers of veto coupled with the absence of any wider constraints upon their exercise suggests that, as a matter of construction, no wider constraints were imposed.
(v) The constraints thus identified, though substantial, do not confine the Protectors to the Narrow Role.
The Board noted that the iterative process of construction now required it to check the above summary (which is based on the natural meaning of the words (or absence of words) of the Protector Provisions) against the wider considerations of the contextual background and against considerations of business efficacy and common sense. It concluded that there are no terms in the trust deeds or the Protector Provisions that support the Narrow Role. On the other hand, there are terms that provide significant support for the Wider Role. The Board considered some of those terms and noted in para 107:
The Board noted that there are also other factors that support the Wider Role. It mentioned specifically the following. First, if the Narrow Role were intended, one would expect that appointment as a Protector would be restricted to those most qualified to assess the Trustees’ proposed action, such as a trust lawyer. Second, if only responsible persons would be appointed as Trustees, who could be relied upon to take advice from Protectors, why would the settlor want to provide for a Protector whose role would be limited to ensuring that the Trustees were acting lawfully?
The Board went on to consider whether a restraint limiting the Protectors to the Narrow Role could be identified under an implied term. It held that no such implied term could be recognized. Therefore, the Board concluded in para 119:
—
[1] [2026] UKPC 11.
[2] Citing Hopcraft v Close Bros Ltd [2025] UKSC 33, paras 82-110.
[3] Citing Rukhadze v Recovery Partners GP Ltd [2025] UKSC 10.
[4] Citing inter alia Grand View Private Trust Co Ltd v Wong [1922] UKPC 47.
Author