Fiduciary Powers and Protectorship Consents: Doctrinal Analysis of *Re the X Trusts* [2026] UKPC 11

## Context and Procedural History The Judicial Committee of the Privy Council (JCPC) delivered its landmark judgment in *A and others v C and others* (commonly cited as *Re the X Trusts*) [2026] UKPC 11 on 19 March 2026. The appeal, originating from the jurisdiction of Bermuda, concerned the correct legal interpretation of a trust protector's power to consent to decisions proposed by trustees. The central legal determination was whether a protector exercises an "independent and substantive discretion" (the Wider Role) or is restricted to reviewing whether the trustee's decision was one that a reasonable body of trustees could have reached (the Narrow Role). This determination has immediate consequences for look-through disclosure regimes, as the substantive capacity to veto trust operations directly informs whether a protector qualifies as a controlling Ultimate Beneficial Owner (*UBO*) under European transparency directives. ## Core Judgment: The Wider Role Established The JCPC unanimously rejected the Narrow Role interpretation. The Court affirmed that where a trust instrument requires a protector’s consent for a trustee action, the protector generally exercises an independent and substantive discretion. Protectors are entitled, and indeed obligated where acting in a fiduciary capacity, to form their own independent view on the substantive merits of a proposed trustee action. Consequently, a protector may lawfully withhold consent even if the trustee’s proposed decision is rational, lawful, and within the scope of the trustee's primary powers, provided the protector acts in good faith and in accordance with their overarching fiduciary duties. The protector is not relegated to a secondary, quasi-judicial review function but acts as a primary gatekeeper of the trust fund. ## Implications for Trust Drafting and Administration The judgment establishes a definitive default interpretative position: absent express exclusionary language in the trust deed, a power of veto granted to a protector is not artificially constrained to a narrow supervisory check. If a settlor intends to limit a protector’s role strictly to evaluating trustee irrationality, the trust instrument must incorporate clear, explicit drafting overrides to codify the Narrow Role. For ongoing trust administration, trustees must provide protectors with comprehensive disclosures and underlying transactional metrics to allow the protector to form an independent substantive decision. Providing merely sufficient documentation to prove the trustee acted rationally is legally inadequate under the Wider Role standard. ## Cross-Border and Italian Disclosure Impact Under Article 22 of Italian Legislative Decree 231/2007, any natural person exercising ultimate control over a trust must be disclosed in the Special Section of the UBO Register. Because the Privy Council has confirmed that a protector with veto rights exercises substantive, independent discretion over trust operations, Italian regulators and administrative courts view such protectors as active co-controllers of the arrangement. Settlors and trustees utilizing Tier 2 and Tier 3 structures holding Italian assets or tax nexuses should audit existing protector protocols. Where the strategic intent is to prevent the protector from being classified as an active controller for AML reporting purposes, trust instruments must be formally amended to strip out general veto capabilities or explicitly restrict intervention to instances of documented trustee bad faith.