Fiona King has written an article considering the Privy Council’s recent decision in A and others v C and others [2026] UKPC 11

The Privy Council held that the protectors of the X Trusts could exercise their own independent judgment. Their role was not limited to checking whether the trustees’ proposal was lawful and rational.

Although the decision does not bind New Zealand courts, it is likely to carry significant persuasive weight.  This case is important because it clarifies that a protector may have real decision-making responsibility, rather than merely checking that trustees have acted lawfully, and highlights the need for trust deeds to define the protector’s role clearly.

What is a trust protector?

A protector is a person appointed under a trust deed to oversee specified trustee decisions. Trust deeds often require the protector’s consent before trustees can exercise important powers.

Protectors are particularly common in offshore trusts, although they are appearing more and more in domestic trusts. The precise role of a protector depends on the wording of the trust deed.

Do protectors have a “Wider Role” or a “Narrow Role”?

The parties in this case put forward two possible interpretations of the protector’s role.

Under the “Narrow Role”, a protector would only assess whether the trustees had made a decision that a reasonable and properly informed body of trustees could make. If the trustees met that standard, the protector would have to consent even if the protector disagreed with the proposal.

Under the “Wider Role”, a protector could consider the proposal independently and assess its merits. The protector could refuse consent even where the trustees had acted lawfully and rationally.

At the earlier stages of the litigation, the lower courts - the Supreme Court of Bermuda and Bermuda Court of Appeal – held that the protectors had the Narrow Role. These courts regarded the trustees as the principal decision-makers and the protectors as supervisory watchdogs. They expressed concerns that the Wider Role could create duplication, delay and deadlock the trust.

The Privy Council decision

On appeal, the Privy Council held that the interpretation of a protector’s powers must begin with the trust deed.

The title of “protector” does not have a fixed legal meaning.  A court must identify the settlor’s objective intention from the words used in the deed.

In this case, the trust deeds did not expressly limit the protectors to reviewing the legality or rationality of trustee decisions. Nothing in the wider terms of the deeds supported that restriction.

Several features instead supported an independent consent power:

The protectors could release or waive their powers. That provision was difficult to reconcile with a mandatory watchdog role.
Where the trusts appointed more than one protector, the protectors generally had to act unanimously.
If the protectors could not agree, the trustees still had to consult them and consider their views.
The deeds required consent only for a limited number of particularly important decisions.
* A narrow legal review would add little where responsible trustees already had to comply with their duties and obtain professional advice when necessary.

Why the Privy Council found that the protectors had a wider role

The Privy Council found several clues in the trust deeds showing that the protectors could use their own judgment:

The protectors could give up their consent powers. This suggested that their role was not simply to police whether the trustees had acted lawfully. A trust deed would not usually allow someone responsible for legal oversight to opt out of that responsibility.

Multiple protectors generally had to agree unanimously. This requirement indicated that each protector’s individual judgment mattered.

The trustees had to consider the protectors’ views even when the protectors could not reach a unanimous decision. This suggested that the protectors were expected to express views about the merits of a proposal, rather than merely check whether it was lawful.

The trustees needed consent only for a small number of especially important decisions. This suggested that the settlor wanted the protectors to apply their knowledge and judgment to those decisions. If their role were only to monitor legal compliance, the deed would probably have given them oversight of a broader range of trustee decisions.

A narrow role would add little practical value. Trustees must already act lawfully, comply with their duties and obtain professional advice where appropriate. It was therefore unlikely that the settlor appointed protectors merely to repeat those checks.

Limits on a protector’s wider role

A wider role does not give a protector an unrestricted power to approve or reject a trustee’s proposal.

In this case, the protectors held their powers as fiduciaries. This meant they had to exercise those powers honestly, for the purposes set out in the trust deed and in the interests of the beneficiaries. They could not use their position to obtain a personal benefit. They also had to manage any personal interest that might conflict with their duties to the beneficiaries. A professional protector may have the additional duty to act with reasonable care and skill.

The protector’s role also remains separate from the trustee’s role. The trustee must first decide what action to propose. The protector then considers that proposal and decides whether to consent. The protector may raise concerns or explain why consent will not be given but cannot take over the trustee’s decision-making role or require the trustee to make a particular decision. 

Trustees and protectors should therefore communicate openly. If a protector has concerns, the parties should discuss them and consider whether the trustees can revise the proposal. This approach respects their separate roles while helping them reach an outcome that serves the trust’s purposes and the beneficiaries’ interests.

Main takeaways

The judgment provides several important lessons:

The trust deed remains decisive. The scope of a protector’s role depends on the deed’s language and structure.

Silence may support a wider role. If a deed requires consent but does not impose narrower limits, a fiduciary protector may assess the merits independently.

Courts will not readily imply restrictions. A perceived risk of delay or deadlock does not, by itself, justify rewriting the deed.

Protectors face genuine responsibility. Beneficiaries may scrutinise whether a protector properly considered a trustee’s proposal and complied with fiduciary duties.

Careful drafting matters. New and existing trust deeds should clearly define the protector’s role, decision-making criteria and procedures for resolving disagreement. Drafters should also consider appropriate indemnities, liability limits and insurance arrangements.

The decision confirms that a protector can play a substantive role in trust governance. It also underlines the need for clear drafting so that trustees, protectors and beneficiaries understand where responsibility lies.