August 26, 2025
The recent Privy Council decision in Ashley Dawson-Damer v Grampian Trust Company Ltd [2025] UKPC 32 (on appeal from the Bahamas) offers important insights for Jersey based trustees in determining the intentions of a corporate settlor and the need to ensure that trustees are not complacent about their understanding of a beneficiary’s needs when making a decision relating to the trust assets.
Grampian Trust Company Limited (the Trustee) is the corporate trustee of the Glenfinnan Settlement, which is a Bahamian-law discretionary trust. The beneficiaries under the Glenfinnan Settlement were the same as under an earlier 1973 Settlement (the 1992 resettlement of which resulted in the Glenfinnan Settlement), namely George Dawson-Damer, John Dawson-Damer, their wives, their children and remoter issue. The claimant, Ashley Dawson-Damer (the Claimant), as John’s widow, is a beneficiary of the Glenfinnan Settlement. As part of the 1992 resettlement, around US$40m of assets were transferred to each of George and John to resettle on new Australian trusts for their respective families. Most of the remaining assets of the 1973 Settlement (c. US$150m) were transferred to a Bahamian company called Spey Limited (Spey) outright. Spey’s memorandum of association permitted Spey to give its assets to or for the benefit of George, John, their spouses, their descendants and the spouses of their descendants. Spey transferred the assets to the Trustee which was appointed as the sole trustee of the Glenfinnan Settlement.
In 2006 and 2009 Grampian had undertaken a restructuring exercise, the effect of which is that c.98% of the assets in the Glenfinnan Settlement were appointed into new trusts. The discretionary beneficiaries of the new trusts did not include the Claimant. This was in light of the Trustee’s understanding of the wishes of Spey, as corporate settlor, back in 1992 that the trust assets of were to be used to the benefit of the next generation beneficiaries.
The Claimant accordingly sought to have the 2006 and 2009 appointments set aside and the funds returned to the Glenfinnan Settlement and further sought that the matter be remitted to the Bahamian court to decide whether a new trustee should be appointed for the Glenfinnan Settlement so that they could consider afresh what appointments, if any, should be made from the restored funds.
The Claimant argued that there had been an improper exercise of a discretionary power by the Trustee, as they had either taken into account irrelevant considerations or failed to take into account relevant considerations in exercising their discretion. The Claimant accordingly alleged that there had been a breach of trustee duty by the Trustee.
Both the first instance court and the Court of Appeal of the Commonwealth of the Bahamas had ultimately found against the Claimant. The Claimant appealed the latter’s decision and she brought two issues before the Privy Council.
Ultimately the Privy Council upheld the Trustee’s decision as it found that the Trustee had correctly proceeded on the basis that the primary purpose of the trust was to benefit the next generation. It also noted that the Trustee had, in fact, provided for the Claimant by holding back 2% of the Glenfinnan Settlement (which was now worth US$14m) as a ‘safety net’ for her.
However this judgment is a salutary reminder for trustees not to become complacent about their understanding of a beneficiary’s needs when making a decision relating to the trust assets. Criticism was directed at the Trustee for failing to obtain up to date information about the Claimant’s financial circumstances and this was held to be a failing in their deliberation process amounting to a breach of fiduciary duty. However, the Privy Council did add, as a footnote, that a trustee is not in breach of duty for failing to consult with a potential beneficiary (citing the Jersey authority of Re Y Trust [2011] JRC 135)
As was established in Pitt v Holt and echoed in Jersey (most recently in Re Ennismore Fund Management Limited [2023] JRC 222) a settlor’s wishes are always a material consideration, but such wishes should not displace all independent judgment.
The intentions of a settlor can be evidenced through contemporary documents, witness testimony, and internal memoranda, and not just formal instruments such as letters of wishes.
As there was a corporate settlor in this case, Spey, the Privy Council had to establish what the wishes of Spey were.
The Privy Council re-affirmed that the intention of a corporate settlor is not derived from a single individual’s views but from the collective decision-making of its board of directors. The Privy Council noted that the Spey’s memorandum and articles specified that decisions were to be made by a majority of the board of directors and as such the Privy Council held that it was the decision of the majority of the board that formed the relevant consideration for the trustee. Applying the test from Meridian Global Funds Management Limited v Securities Commission to identify the ‘directing mind and will of the company’ (which has been applied in the Royal Court most recently in Nautilus Trustee Limited v Zedra Trustees (Jersey) Limited [2016] JRC 223), it was accepted that Spey’s board had reached a consensus during a 1992 meeting, and that this consensus, though not formally recorded was sufficient to establish Spey’s intention.
This aspect of the judgment has practical implications for Jersey trustees. It confirms that settlor intention can be evidenced through informal channels, including internal memoranda, witness testimony, and contemporaneous documents. While formal instruments such as letters of wishes remain best practice, they are not the sole means of establishing intent. This is particularly relevant in Jersey, where corporate settlors often operate through private trust companies and may rely on informal communications.
Trustees must therefore take care to investigate and understand the intentions of corporate settlors thoroughly. These intentions, while not binding, are a material consideration in the exercise of discretionary powers. A failure to properly consider them—especially when they are clearly documented or evidenced—can expose trustees to claims of inadequate deliberation.
The recent Privy Council decision in Ashley Dawson-Damer v Grampian Trust Company Ltd [2025] UKPC 32 (on appeal from the Bahamas) offers important insights for Jersey based trustees in determining the intentions of a corporate settlor and the need to ensure that trustees are not complacent about their understanding of a beneficiary’s needs when making a decision relating to the trust assets.
Grampian Trust Company Limited (the Trustee) is the corporate trustee of the Glenfinnan Settlement, which is a Bahamian-law discretionary trust. The beneficiaries under the Glenfinnan Settlement were the same as under an earlier 1973 Settlement (the 1992 resettlement of which resulted in the Glenfinnan Settlement), namely George Dawson-Damer, John Dawson-Damer, their wives, their children and remoter issue. The claimant, Ashley Dawson-Damer (the Claimant), as John’s widow, is a beneficiary of the Glenfinnan Settlement. As part of the 1992 resettlement, around US$40m of assets were transferred to each of George and John to resettle on new Australian trusts for their respective families. Most of the remaining assets of the 1973 Settlement (c. US$150m) were transferred to a Bahamian company called Spey Limited (Spey) outright. Spey’s memorandum of association permitted Spey to give its assets to or for the benefit of George, John, their spouses, their descendants and the spouses of their descendants. Spey transferred the assets to the Trustee which was appointed as the sole trustee of the Glenfinnan Settlement.
In 2006 and 2009 Grampian had undertaken a restructuring exercise, the effect of which is that c.98% of the assets in the Glenfinnan Settlement were appointed into new trusts. The discretionary beneficiaries of the new trusts did not include the Claimant. This was in light of the Trustee’s understanding of the wishes of Spey, as corporate settlor, back in 1992 that the trust assets of were to be used to the benefit of the next generation beneficiaries.
The Claimant accordingly sought to have the 2006 and 2009 appointments set aside and the funds returned to the Glenfinnan Settlement and further sought that the matter be remitted to the Bahamian court to decide whether a new trustee should be appointed for the Glenfinnan Settlement so that they could consider afresh what appointments, if any, should be made from the restored funds.
The Claimant argued that there had been an improper exercise of a discretionary power by the Trustee, as they had either taken into account irrelevant considerations or failed to take into account relevant considerations in exercising their discretion. The Claimant accordingly alleged that there had been a breach of trustee duty by the Trustee.
Both the first instance court and the Court of Appeal of the Commonwealth of the Bahamas had ultimately found against the Claimant. The Claimant appealed the latter’s decision and she brought two issues before the Privy Council.
Ultimately the Privy Council upheld the Trustee’s decision as it found that the Trustee had correctly proceeded on the basis that the primary purpose of the trust was to benefit the next generation. It also noted that the Trustee had, in fact, provided for the Claimant by holding back 2% of the Glenfinnan Settlement (which was now worth US$14m) as a ‘safety net’ for her.
However this judgment is a salutary reminder for trustees not to become complacent about their understanding of a beneficiary’s needs when making a decision relating to the trust assets. Criticism was directed at the Trustee for failing to obtain up to date information about the Claimant’s financial circumstances and this was held to be a failing in their deliberation process amounting to a breach of fiduciary duty. However, the Privy Council did add, as a footnote, that a trustee is not in breach of duty for failing to consult with a potential beneficiary (citing the Jersey authority of Re Y Trust [2011] JRC 135)
As was established in Pitt v Holt and echoed in Jersey (most recently in Re Ennismore Fund Management Limited [2023] JRC 222) a settlor’s wishes are always a material consideration, but such wishes should not displace all independent judgment.
The intentions of a settlor can be evidenced through contemporary documents, witness testimony, and internal memoranda, and not just formal instruments such as letters of wishes.
As there was a corporate settlor in this case, Spey, the Privy Council had to establish what the wishes of Spey were.
The Privy Council re-affirmed that the intention of a corporate settlor is not derived from a single individual’s views but from the collective decision-making of its board of directors. The Privy Council noted that the Spey’s memorandum and articles specified that decisions were to be made by a majority of the board of directors and as such the Privy Council held that it was the decision of the majority of the board that formed the relevant consideration for the trustee. Applying the test from Meridian Global Funds Management Limited v Securities Commission to identify the ‘directing mind and will of the company’ (which has been applied in the Royal Court most recently in Nautilus Trustee Limited v Zedra Trustees (Jersey) Limited [2016] JRC 223), it was accepted that Spey’s board had reached a consensus during a 1992 meeting, and that this consensus, though not formally recorded was sufficient to establish Spey’s intention.
This aspect of the judgment has practical implications for Jersey trustees. It confirms that settlor intention can be evidenced through informal channels, including internal memoranda, witness testimony, and contemporaneous documents. While formal instruments such as letters of wishes remain best practice, they are not the sole means of establishing intent. This is particularly relevant in Jersey, where corporate settlors often operate through private trust companies and may rely on informal communications.
Trustees must therefore take care to investigate and understand the intentions of corporate settlors thoroughly. These intentions, while not binding, are a material consideration in the exercise of discretionary powers. A failure to properly consider them—especially when they are clearly documented or evidenced—can expose trustees to claims of inadequate deliberation.
The recent Privy Council decision in Ashley Dawson-Damer v Grampian Trust Company Ltd [2025] UKPC 32 (on appeal from the Bahamas) offers important insights for Jersey based trustees in determining the intentions of a corporate settlor and the need to ensure that trustees are not complacent about their understanding of a beneficiary’s needs when making a decision relating to the trust assets.
Grampian Trust Company Limited (the Trustee) is the corporate trustee of the Glenfinnan Settlement, which is a Bahamian-law discretionary trust. The beneficiaries under the Glenfinnan Settlement were the same as under an earlier 1973 Settlement (the 1992 resettlement of which resulted in the Glenfinnan Settlement), namely George Dawson-Damer, John Dawson-Damer, their wives, their children and remoter issue. The claimant, Ashley Dawson-Damer (the Claimant), as John’s widow, is a beneficiary of the Glenfinnan Settlement. As part of the 1992 resettlement, around US$40m of assets were transferred to each of George and John to resettle on new Australian trusts for their respective families. Most of the remaining assets of the 1973 Settlement (c. US$150m) were transferred to a Bahamian company called Spey Limited (Spey) outright. Spey’s memorandum of association permitted Spey to give its assets to or for the benefit of George, John, their spouses, their descendants and the spouses of their descendants. Spey transferred the assets to the Trustee which was appointed as the sole trustee of the Glenfinnan Settlement.
In 2006 and 2009 Grampian had undertaken a restructuring exercise, the effect of which is that c.98% of the assets in the Glenfinnan Settlement were appointed into new trusts. The discretionary beneficiaries of the new trusts did not include the Claimant. This was in light of the Trustee’s understanding of the wishes of Spey, as corporate settlor, back in 1992 that the trust assets of were to be used to the benefit of the next generation beneficiaries.
The Claimant accordingly sought to have the 2006 and 2009 appointments set aside and the funds returned to the Glenfinnan Settlement and further sought that the matter be remitted to the Bahamian court to decide whether a new trustee should be appointed for the Glenfinnan Settlement so that they could consider afresh what appointments, if any, should be made from the restored funds.
The Claimant argued that there had been an improper exercise of a discretionary power by the Trustee, as they had either taken into account irrelevant considerations or failed to take into account relevant considerations in exercising their discretion. The Claimant accordingly alleged that there had been a breach of trustee duty by the Trustee.
Both the first instance court and the Court of Appeal of the Commonwealth of the Bahamas had ultimately found against the Claimant. The Claimant appealed the latter’s decision and she brought two issues before the Privy Council.
Ultimately the Privy Council upheld the Trustee’s decision as it found that the Trustee had correctly proceeded on the basis that the primary purpose of the trust was to benefit the next generation. It also noted that the Trustee had, in fact, provided for the Claimant by holding back 2% of the Glenfinnan Settlement (which was now worth US$14m) as a ‘safety net’ for her.
However this judgment is a salutary reminder for trustees not to become complacent about their understanding of a beneficiary’s needs when making a decision relating to the trust assets. Criticism was directed at the Trustee for failing to obtain up to date information about the Claimant’s financial circumstances and this was held to be a failing in their deliberation process amounting to a breach of fiduciary duty. However, the Privy Council did add, as a footnote, that a trustee is not in breach of duty for failing to consult with a potential beneficiary (citing the Jersey authority of Re Y Trust [2011] JRC 135)
As was established in Pitt v Holt and echoed in Jersey (most recently in Re Ennismore Fund Management Limited [2023] JRC 222) a settlor’s wishes are always a material consideration, but such wishes should not displace all independent judgment.
The intentions of a settlor can be evidenced through contemporary documents, witness testimony, and internal memoranda, and not just formal instruments such as letters of wishes.
As there was a corporate settlor in this case, Spey, the Privy Council had to establish what the wishes of Spey were.
The Privy Council re-affirmed that the intention of a corporate settlor is not derived from a single individual’s views but from the collective decision-making of its board of directors. The Privy Council noted that the Spey’s memorandum and articles specified that decisions were to be made by a majority of the board of directors and as such the Privy Council held that it was the decision of the majority of the board that formed the relevant consideration for the trustee. Applying the test from Meridian Global Funds Management Limited v Securities Commission to identify the ‘directing mind and will of the company’ (which has been applied in the Royal Court most recently in Nautilus Trustee Limited v Zedra Trustees (Jersey) Limited [2016] JRC 223), it was accepted that Spey’s board had reached a consensus during a 1992 meeting, and that this consensus, though not formally recorded was sufficient to establish Spey’s intention.
This aspect of the judgment has practical implications for Jersey trustees. It confirms that settlor intention can be evidenced through informal channels, including internal memoranda, witness testimony, and contemporaneous documents. While formal instruments such as letters of wishes remain best practice, they are not the sole means of establishing intent. This is particularly relevant in Jersey, where corporate settlors often operate through private trust companies and may rely on informal communications.
Trustees must therefore take care to investigate and understand the intentions of corporate settlors thoroughly. These intentions, while not binding, are a material consideration in the exercise of discretionary powers. A failure to properly consider them—especially when they are clearly documented or evidenced—can expose trustees to claims of inadequate deliberation.
The recent Privy Council decision in Ashley Dawson-Damer v Grampian Trust Company Ltd [2025] UKPC 32 (on appeal from the Bahamas) offers important insights for Jersey based trustees in determining the intentions of a corporate settlor and the need to ensure that trustees are not complacent about their understanding of a beneficiary’s needs when making a decision relating to the trust assets.
Grampian Trust Company Limited (the Trustee) is the corporate trustee of the Glenfinnan Settlement, which is a Bahamian-law discretionary trust. The beneficiaries under the Glenfinnan Settlement were the same as under an earlier 1973 Settlement (the 1992 resettlement of which resulted in the Glenfinnan Settlement), namely George Dawson-Damer, John Dawson-Damer, their wives, their children and remoter issue. The claimant, Ashley Dawson-Damer (the Claimant), as John’s widow, is a beneficiary of the Glenfinnan Settlement. As part of the 1992 resettlement, around US$40m of assets were transferred to each of George and John to resettle on new Australian trusts for their respective families. Most of the remaining assets of the 1973 Settlement (c. US$150m) were transferred to a Bahamian company called Spey Limited (Spey) outright. Spey’s memorandum of association permitted Spey to give its assets to or for the benefit of George, John, their spouses, their descendants and the spouses of their descendants. Spey transferred the assets to the Trustee which was appointed as the sole trustee of the Glenfinnan Settlement.
In 2006 and 2009 Grampian had undertaken a restructuring exercise, the effect of which is that c.98% of the assets in the Glenfinnan Settlement were appointed into new trusts. The discretionary beneficiaries of the new trusts did not include the Claimant. This was in light of the Trustee’s understanding of the wishes of Spey, as corporate settlor, back in 1992 that the trust assets of were to be used to the benefit of the next generation beneficiaries.
The Claimant accordingly sought to have the 2006 and 2009 appointments set aside and the funds returned to the Glenfinnan Settlement and further sought that the matter be remitted to the Bahamian court to decide whether a new trustee should be appointed for the Glenfinnan Settlement so that they could consider afresh what appointments, if any, should be made from the restored funds.
The Claimant argued that there had been an improper exercise of a discretionary power by the Trustee, as they had either taken into account irrelevant considerations or failed to take into account relevant considerations in exercising their discretion. The Claimant accordingly alleged that there had been a breach of trustee duty by the Trustee.
Both the first instance court and the Court of Appeal of the Commonwealth of the Bahamas had ultimately found against the Claimant. The Claimant appealed the latter’s decision and she brought two issues before the Privy Council.
Ultimately the Privy Council upheld the Trustee’s decision as it found that the Trustee had correctly proceeded on the basis that the primary purpose of the trust was to benefit the next generation. It also noted that the Trustee had, in fact, provided for the Claimant by holding back 2% of the Glenfinnan Settlement (which was now worth US$14m) as a ‘safety net’ for her.
However this judgment is a salutary reminder for trustees not to become complacent about their understanding of a beneficiary’s needs when making a decision relating to the trust assets. Criticism was directed at the Trustee for failing to obtain up to date information about the Claimant’s financial circumstances and this was held to be a failing in their deliberation process amounting to a breach of fiduciary duty. However, the Privy Council did add, as a footnote, that a trustee is not in breach of duty for failing to consult with a potential beneficiary (citing the Jersey authority of Re Y Trust [2011] JRC 135)
As was established in Pitt v Holt and echoed in Jersey (most recently in Re Ennismore Fund Management Limited [2023] JRC 222) a settlor’s wishes are always a material consideration, but such wishes should not displace all independent judgment.
The intentions of a settlor can be evidenced through contemporary documents, witness testimony, and internal memoranda, and not just formal instruments such as letters of wishes.
As there was a corporate settlor in this case, Spey, the Privy Council had to establish what the wishes of Spey were.
The Privy Council re-affirmed that the intention of a corporate settlor is not derived from a single individual’s views but from the collective decision-making of its board of directors. The Privy Council noted that the Spey’s memorandum and articles specified that decisions were to be made by a majority of the board of directors and as such the Privy Council held that it was the decision of the majority of the board that formed the relevant consideration for the trustee. Applying the test from Meridian Global Funds Management Limited v Securities Commission to identify the ‘directing mind and will of the company’ (which has been applied in the Royal Court most recently in Nautilus Trustee Limited v Zedra Trustees (Jersey) Limited [2016] JRC 223), it was accepted that Spey’s board had reached a consensus during a 1992 meeting, and that this consensus, though not formally recorded was sufficient to establish Spey’s intention.
This aspect of the judgment has practical implications for Jersey trustees. It confirms that settlor intention can be evidenced through informal channels, including internal memoranda, witness testimony, and contemporaneous documents. While formal instruments such as letters of wishes remain best practice, they are not the sole means of establishing intent. This is particularly relevant in Jersey, where corporate settlors often operate through private trust companies and may rely on informal communications.
Trustees must therefore take care to investigate and understand the intentions of corporate settlors thoroughly. These intentions, while not binding, are a material consideration in the exercise of discretionary powers. A failure to properly consider them—especially when they are clearly documented or evidenced—can expose trustees to claims of inadequate deliberation.