Protector Powers Re-examined: The Privy Council Decision In A v C [2026]

The office of "protector" is a common feature of many discretionary trusts. A protector is a person on whom the trust instrument confers specified powers relating to the governance and administration of the trust, which may range from the appointment and removal of trustees to consent or veto rights in respect of particular trustee decisions.

The Privy Council has advised in A and 6 others (Appellants) v C and 13 others (Respondents) [2026] UKPC 11 that, absent express provisions in the relevant trust instrument to the contrary, the default position is that a protector has a wide role when consent to a trustee decision is required.

The decision marks the latest chapter in a longstanding, multi-jurisdiction debate concerning the interpretation of the protector role. We have considered the Bermuda Supreme Court and Bermuda Court of Appeal decisions in this particular litigation in previous blog posts (here and here respectively).

Background

Unlike “trustee”, “protector” is not a term of art and carries no settled legal meaning across the common law world.¹ The nature, scope and juridical character of the role depends upon the proper construction of the trust instrument, including whether the protector is intended to exercise an independent evaluative discretion or a more limited supervisory function. Where a deed confers a power of consent or veto but is silent as to how that power is to be exercised by the protector, the central question is what constraints, if any, apply as a matter of default?

A v C relates to a series of offshore trusts governed by Bermudian, Jersey and English law. The respective trust instruments include broadly identical provisions regarding the appointment and powers of one or more "protectors" (the Protectors), in particular the power of consent for the trustee's appointments of capital and voting of particular shares held in the trust.

Two groups of beneficiaries, the "A branch" and the "B branch", disagreed on the scope of these consent powers. The A branch was in favour of the Protectors having a narrow role which would entail the Protectors' function being limited to reviewing the lawfulness of the trustee's proposed exercise of their power, and – if such exercise was lawful – the Protector being bound to consent (the Narrow Role). By contrast, the B branch was in favour of the Protectors making an independent assessment of the proposal’s merits or its impact on beneficiaries and then deciding whether to consent (the Wider Role). The B branch were the appellants in the present case.

Judgment

Construction of the Trust Deeds

The Privy Council rejected a binary approach that assumed the settlor must have intended one or the other of these two default roles. Instead, the correct analysis is to identify the actual constraints imposed by the trust instruments, read in their context and with regard to the general law. This exercise is necessary because a power of veto does not inherently carry constraints, though they can be imposed by statute or contract (for example landlords’ duties not to unreasonably withhold consent to assignments or underlettings).

As part of the "iterative contextual process of construction", the Board noted that the powers conferred on the Protectors under the trust deeds were to be exercised in a fiduciary capacity. As a result, the standard no‑profit and no‑conflict duties applied to the Protectors. Whilst the fiduciary status of the Protectors did impose significant constraints upon the way in which they have to exercise their powers, the Board viewed those constraints as operating "within, and in harmony with, the Wider Role", rather than supporting the Narrow Role interpretation.

Likewise, the Board observed that constraints which are likely imposed on the Protectors as paid professionals to act with reasonable care, skill and duty of care do not restrict them to the Narrow Role, noting that the Trustees themselves are paid professional entities with wide discretionary powers.

The Board then turned to contextual interpretation, business efficacy and common sense, concluding that several features of the trust instruments weighed against a Narrow interpretation, including that:

1. The trust instruments permit the Protectors to waive the requirement that they consent to a transaction, which is difficult to reconcile with a narrow duty to police the trustees for legality and rationality.
2. Unanimity is required where there is more than one Protector, yet under a Narrow Role a single dissenting Protector could not prevent the trustees from acting, even where the proposed course of action was considered to be unlawful.
3. Protector consent is required only for a limited category of significant trustee decisions, which is inconsistent with a Narrow Role (where the Protectors would be limited only to assessing the legality and rationality of the trustees' proposal), given that any breach of trust would ordinarily concern a settlor regardless of the type of decision involved.

Further, the Board found the following factors as supporting the Wider interpretation:

1. If the Narrow Role had been intended, one would expect that appointment as Protector would be confined to professionals qualified to assess the legality of trustees' actions, such as lawyers with specialist trust expertise. This was not the case.
2. If trustees are appointed as responsible individuals who can be relied upon to act in accordance with their fiduciary duties, it is difficult to see why a settlor would also provide for a Protector whose role is confined merely to verifying that the trustees are acting lawfully.

Implied term

The Board declined to imply a term imposing a Narrow Role on the Protectors, holding that such a term was neither necessary to make the trusts workable in practice nor capable of satisfying the officious bystander test. The Board further observed that, even if the absence of an express definition of the Protectors' role was said to require the implication of a term, it was unclear what the content of that term would be.

The Board found that the settlor's decision to draft the Protector provisions without specifying how the Protectors were to decide whether to give or withhold consent to trustees’ proposals was a deliberate one. As a matter of construction, the Board concluded that no further constraints were intended to be imposed on the Protectors’ role. In any event, the absence of such constraints was not a gap capable of being filled by implying a term defining a Narrow Role. Accordingly, the Board allowed the appeal.

Comment

The Privy Council’s decision expands the default role of Protectors beyond what was previously assumed where trust instruments are silent as to the scope of their powers.

It remains an open question how the courts will approach the role of protector where the contextual features of a trust deed differ, for example, where protectors are unable to waive their powers. There is also uncertainty as to whether this development may place strain on the relationship between protectors and other stakeholders (i.e. settlors, trustees and beneficiaries), particularly if protectors seek greater exculpation, enhanced information rights, or (increased) remuneration.

In any event, the decision serves as a reminder to practitioners and settlors that, where it is intended for protectors to have narrow powers, this intention must be articulated clearly and expressly in the drafting of the trust instrument, to displace any presumption that a protector’s powers are wide. Depending on the scope of any amendment powers in the relevant deed, it is possible that attempts will be made in future to amend existing protector provisions so as to move away from the default position towards a more limited role. In the absence of statutory intervention, it remains uncertain whether the courts will place limits on the extent to which protector powers may be constrained by drafting (perhaps raising questions as to what the irreducible core of a protector's role is).

Footnote

1 Even if some jurisdictions do define it albeit in general terms e.g. in the Bahamas Trust Act 1998.

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