Analysis
Some of the beneficiaries (the representor beneficiaries) of two Jersey trusts applied for an order to remove the protector of each trust from office. The beneficiaries felt that their relationship with the protector had broken down. The majority of the other adult beneficiaries who did not take part in the legal action shared this view.
The protector did not wish to retire. He felt he was the living guardian and enforcer of the settlors’ wishes. He insisted that he felt no hostility towards the beneficiaries.
Held (removing the protector):
- (1) The protector had only been given limited power by the settlors. His function was not to ensure that the settlors’ wishes were carried out, but rather to do his best to see that the trustees have due regard to the settlors’ wishes.
- (2) His paramount duty is to the beneficiaries of the trust.
- (3) The protector’s vigorous attack on the beneficiaries during the course of litigation was at odds with his assertion that he felt no hostility towards them.
- (4) The jurisdiction to remove the protector flows from the fiduciary nature of the position and the guiding principles for removal are akin to those to remove a trustee. The test is whether the continuance of the office holder would be detrimental to the execution of the trust.
- (5) Here the mutual hostility and distrust between the representor beneficiaries and the protector had caused a breakdown in relations that was detrimentally effecting the execution of the trusts and was likely to continue doing so.
- (6) In addition the protector had played an overactive part in managing the trusts and did not recognise the potential risks of this.
Continue reading "Re the A Trust [2012] JRC169A"
This content is only available to members.