Removal of Protectors considered by the Jersey Royal Court
05 July 2013
A recent judgment has clarified the principles that govern the exercise of the jurisdiction to remove a protector from office.
The judgment concerned an application by certain beneficiaries of two Jersey trusts for the removal of the Protector from office as the relationship between the Beneficiaries and the Protector had irretrievably broken down and the majority of the other adult beneficiaries wished the Protector to resign.
The problem lay in that the Protector viewed himself as the living guardian and enforcer of the settlor’s wishes. The Court considered such a view of the role as being misconceived, resulting in the Protector playing an overactive part in the management of the trusts, to their potential jeopardy.
The Court stated:
that it was not for a Protector to ensure that the wishes of a settlor are carried; and
drew an analogy with a trustee's duty in relation to a letter of wishes as being no more than to have due regard to those wishes without an obligation to follow them; and
stated that a protector's duty can be "no higher than to do his best to see that the trustees have due regard to the settlor's wishes" and that the paramount duty of a protector is to the beneficiaries of the trust.
It was accepted that the relevant considerations for the exercise of the court's jurisdiction to remove a protector from office were akin to those applicable to the removal of a trustee from office.
This is first case in which the Court has confirmed that the principles behind the removal of protectors as being the same as are currently applied to the removal of trustees.
The Protector’s paramount duty is to the beneficiaries of the trust.
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