Clarifying the protector's role: key takeaways from the Privy Council's 2026 judgment

The Judicial Committee of the Privy Council has confirmed that protectors who are required to consent to trustee decisions must exercise an independent fiduciary discretion – known as the "wider role" – with significant implications for trustees, protectors, settlors and advisers across international trust jurisdictions. 

This important ruling clarifies that when consent is required, protectors are expected to exercise an independent discretion, and form their own view on whether a proposed trustee decision should proceed, rather than merely evaluate the trustee's reasoning. Clients should, therefore, ensure their protector provisions are clear, appropriately drafted and that, more generally, protectors are well-placed (in terms of ability and experience) to meet these wider obligations. 

Although the Judicial Committee of the Privy Council's (JCPC) decision in A & Others v C & Others [2026] UKPC 11 is in respect of an appeal from the Court of Appeal of Bermuda (the Bermudan Court of Appeal), it will be persuasive throughout other leading trust jurisdictions. It also reinforces the position established in Jersey, where the wider role had already been adopted, in the matter of Piedmont Trust and the Riviera Trust [2021] JRC 248 (Piedmont). 

But how did the JCPC come to its decision? What does it mean for trustees, protectors, settlors and families? And how will this decision impact trusts in other jurisdictions?  

The "narrow role" vs the "wider role": what's the difference? 

The role of protectors, in circumstances where they are exercising their consent powers, has been subject to recent judicial consideration. The competing interpretations of a protector's role can be summarised as follows:  

The narrow role 

The protector's role is limited to evaluating the trustee's proposal, including considering: 

• satisfying themselves that the decision is one which a reasonable body of properly informed trustees could take
• considering how the decision was made  

The wider role 

The protector must exercise their independent discretion as to whether or not to give their consent to the trustee's proposal in accordance with the normal principles which would apply in the exercise of a fiduciary discretion. For example, taking into account relevant considerations, disregarding irrelevant consideration and reaching their own decision which is reasonable in the circumstances. 

The current position under Jersey law, as established in Piedmont, is that the wider role is the correct analysis. Prior to the decision of the JCPC, the Bermudan Court of Appeal had ruled that the narrow role applied. There was, therefore, a difference in views between leading jurisdictions in this area, and consequential uncertainty for the industry. 

Case background to A & Others v C & Others

These proceedings related to a series of discretionary trusts which are governed by English law, Bermudian law and Jersey law (the X Trusts).   

All bar one of the X Trusts have largely identical provisions relating to the scope of the powers of the protectors. The provisions provide that the protectors have two main powers:   

1. the power to approve or refuse any appointment of capital to the beneficiaries proposed by the trustees
2. the power to approve or disapprove any dealing with, or exercise by the trustees, of voting powers derived from certain "Specified Securities", including shares in a company   

In 2017, the trustees of the X Trusts proposed a significant restructuring involving unequal distributions among the beneficiaries. In order to progress with this, the trustees were required to obtain the protectors' written consent in relation to the proposals.  

The protectors, following a consultation process, signalled they were unlikely to give consent, having approached the proposal on the basis of the wider role.  

However, both the Supreme Court of Bermuda (as the court of first instance) and the Bermudan Court of Appeal found that the trust deeds conferred the narrow role upon the protectors. 

The JCPC disagreed.    

The JCPC's decision 

The JCPC concluded that the protectors of the X Trusts had been conferred with the wider role in relation to the exercise of their consent powers. However, the JCPC did not see the matter as simply a binary choice between the wider role and the narrow role.  

The JCPC emphasised that the role of the protector is determined first and foremost by the trust deed, interpreted in its legal and factual context.  

The JCPC's key findings

1. The role of the protector is a matter for the settlor to prescribe in the trust deed. The starting point, therefore, is to consider the express terms in their relevant context.  
2. Before a term will be implied, it needs to be considered whether the apparent gap in the instrument (which the implied term is seeking to fill) is deliberate. An apparent gap may be deliberately left where the settlor decides to leave the protector free to act without constraint. The trust deeds for the X Trusts are an example of this approach in action. 
3. In circumstances where the settlor has provided for protectors to exercise precisely defined powers, but remained silent about how those powers should be exercised, the question is: what, if any, constraints are imposed? The trust instrument should then be construed in context and with regard to any constraints imported by the general law.  
4. The X Trusts deeds did not by express language impose any constraints upon the protectors in the exercise of their powers. However, the powers conferred on the protectors were to be exercised by those persons as fiduciaries.  
5. The terms of the trust deeds for the X Trusts provided support for the wider role, including:   
   1. the release / waiver of the protectors' powers  
   2. a provision enabling the trustees to proceed with a proposed decision even where the unanimous consent of joint protectors had not been obtained, provided that the trustees had taken the views expressed into account before taking a final decision  
   3. the fact that protectors' consent is only required for a limited range of trustee acts  

What this means for you

For trustees 

• Expect protectors to scrutinise proposals from a different – potentially more substantive – perspective 
• Consider the disclosure of relevant information to protectors, while also ensuring ongoing confidentiality in that documentation 
• Build realistic timelines into decisions requiring consent 

For protectors 

• Understand that consent powers involve active and independent fiduciary decision-making, not simply review and oversight 
• Take professional advice where needed 
• Ensure decisions are properly documented and defensible 

For settlors and families

• Consider whether the chosen protector has the skills, independence and availability to fulfil a fiduciary role
• Older trust deeds may need updating to align with modern expectations

For a broader overview of what protectors do in practice – including how to choose an appropriate protector, potential conflicts of interest and drafting considerations – read the companion article from our Trusts Advisory Group: X marks the spot: the evolving role of trust protectors

The international impact: Jersey

The current position under Jersey law, as established by Piedmont, is that the wider role is the correct interpretation of what the protector's role encompasses. 

Although the JCPC's decision in A & Others v C & Others is not binding in Jersey, it does reinforce the validity of the island's position and provides helpful guidance for protectors, trustees and legal practitioners involved with non-contentious and contentious trust matters.  

While confirmation that the wider role applies does not change the position in Jersey, it is a timely reminder to consider the practical ramifications of this test.

A timely reminder to revisit protector provisions

The JCPC's decision confirms that protectors are expected to deploy an independent and active fiduciary discretion. As protector powers are required in increasingly complex and high value trust matters, the JCPC's judgment provides important clarity. Clients, trustees and advisers should take the opportunity to review trust documentation and consider the extent to which protector provisions are drafted clearly and robustly, as well as how practically their operation might play out. 

How Ogier can help 

Ogier advises settlors, trustees and family offices on the establishment, restructuring and administration of trust structures across leading offshore jurisdictions. Our Trusts Advisory Group regularly advise on the appointment and role of protectors, including drafting consent provisions that reflect the preferred approach in light of recent case law.  

Our teams also act in court applications concerning trustee powers and protector consent functions, ensuring that trust structures remain robust, clear and aligned with clients’ long-term objectives. For more information, contact a member of our team. 

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Disclaimer

This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

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