The role of protectors: a UK perspective

Abstract

Absent from English statute, trust protectors are notoriously ill-defined, and that term can take on vastly different meanings between jurisdictions, and between trust instruments. Protector problems are a more frequent feature in offshore trust litigation, in particular regarding the precise nature of protector powers, and whether these should be defined as fiduciary, personal or otherwise. In this article, we explore the UK perspective on the use and incorporation of trust protectors, in comparison to their use in the traditional offshore jurisdictions where they are particularly prevalent, and seemingly only increasing in stature and power, at times exercising genuinely discretionary review functions and sometimes holding powers that exceed those of their trustees. Different interpretations of the key protector power of veto are also explored, with reference to the recent alternate findings on this issue between the Jersey Courts in Piedmont and Riviera Trusts [2021] and the Supreme Court of Bermuda in Re the X Trusts [2021].