Simon Taube KC successful for Appellants in A and 6 Others v C and 13 Others [2026] UKPC 11 (X Trusts) before the Privy Council. On appeal from the Court of Appeal in Bermuda, X Trusts concerned whether the default role of protectors in a trust, where the instrument was silent as to how a protector should approve or veto a trustee decision, was what legal academia has labelled a ‘narrow role’ or the ‘wider role’.
The ‘narrow role’ strictly limits the protector to reviewing the legality of the trustee’s proposal. Conversely, the ‘wider role’ allows the protector to form their own views as to the merits of the trustee’s proposal. The Board, concurring with the arguments put forward by the Appellants, determined where a trust instrument is silent on how a protector is to exercise their powers this confers on the protector the ‘wider role’. In applying the principles of construction to trust instruments and principles on implied terms, the Board reasoned the express language did not impose constraints on the protectors, and silence did not indicate the need for an implied term setting out the ‘narrow role’, which in any event would not meet the ‘officious bystander’ test.
Further reasoning included, that the ‘narrow role’ would carry with it expectations that legal professional would be appointed to the role which was not the case. Given the Court’s supervisory role, a ‘narrow role’ protector would be superfluous. Also, protectors, where professional trustees are employed, provide a better connection to the settlor’s family. Although there is a risk of deadlock, this is not sufficient to reject the ‘wider role’.
