The case arose against a backdrop of divergent approaches adopted in leading trust jurisdictions. In particular, two competing views had emerged. Under a more limited approach, the protector’s role was confined to verifying whether the trustee’s decision fell within a reasonable range. Under a broader approach, the protector was required to exercise an independent judgment, forming their own view on the merits of the proposed decision.
The Privy Council has now confirmed that, unless the trust deed provides otherwise, a protector who holds a power of consent must exercise an independent fiduciary discretion. It is therefdore not sufficient for the protector merely to review the trustee’s decision‑making process or to act as a procedural check. The protector must actively assess the substance of the proposed decision and determine for themselves whether consent should be given.
The judgment also reaffirms the central importance of the trust deed. The terms of the deed may define or limit the scope of the protector’s powers and may specify how those powers are to be exercised. However, where the powers conferred are fiduciary in nature and the deed is silent as to their exercise, general fiduciary principles will apply.
From a practical perspective, the decision strengthens and clarifies the role of the protector within the governance framework of a trust. It is likely to result in a more structured and substantive interaction between trustees and protectors, particularly in relation to information flows, decision‑making processes, and timing. Protectors may increasingly be expected to receive comprehensive information, to engage meaningfully with trustees, and to document their reasoning when exercising consent powers.
In this context, the appointment of a professional protector assumes particular importance. The requirement to exercise an independent fiduciary judgment presupposes a level of technical competence, independence, and procedural discipline that may be difficult to achieve where the role is entrusted to family members or other informal appointees. A professional protector is better placed to evaluate complex trustee decisions, manage information asymmetries, and ensure that consent powers are exercised in accordance with fiduciary standards and consistent governance practices.
More broadly, the judgment is consistent with developments in other jurisdictions and supports a governance model in which the protector plays a meaningful and substantive role, rather than functioning as a purely formal or defensive safeguard. In trusts with international or Italian connections, this clarification further reinforces the importance of robust trust management and of appointing a professional protector capable of demonstrating genuine independence in both form and substance.
