Trust practitioners may be familiar with the name Dawson-Damer from long-running litigation which examined the extent to which trustees are compelled to disclose trust documents at a beneficiary’s request (see our earlier article). Now, the family trusts have again been the subject of court-attention, with a recent decision¹ of the Judicial Committee of the Privy Council (the JCPC) considering trustee decision making, focussing on (i) interpreting the wishes of a corporate settlor; and (ii) whether there was a breach of trustee duty by inadequate deliberation. A key takeaway from the case is that trustees should remember, in line with best practice, to seek up-to-date information at sufficiently regular intervals from all current beneficiaries in relation to their wishes and needs, including updated financial information.

Practical implications 

The case serves as a reminder to trustees and those who advise on trusts that it is prudent to keep up-to-date records on the wishes and needs of all current beneficiaries. If regular updates are not sought in the usual course of administration of a particular trust, a trustee should seek to obtain up-to-date information from beneficiaries if, during the life of a settlement, the trustee comes to consider a potential restructuring (or, even in relation to making distributions, routine or otherwise). Circumstances can, and do often, change, therefore it is not sufficient for a trustee to assume the needs of a particular beneficiary based on previous fact-patterns or publicly available information (e.g. where the beneficiary is a high-net-worth or high-profile individual). 

As to expressions of wishes, the case is further authority for the wishes or intentions of settlors being shared with trustees by third parties (such as professional advisers). However, it remains best practice to ensure that settlors (whether individuals or corporate entities) record their wishes clearly in writing, which could help to avoid disputes in the future. 

Brief background and relief sought

The JCPC delivered its judgment in the Dawson-Damer v Grampian Trust Company Limited [2025] UKPC 32 case on 7 July 2025. 

Grampian Trust Company Limited (Grampian) 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. Therefore Ashley, 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 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 Grampian 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 Ashley. This was in light of Grampian’s understanding of the wishes of Spey, as corporate settlor, back in 1992 (and Grampian argued as documented in a note of advice from legal counsel (the 1992 Memorandum)). The 1992 Memorandum referred to the benefit of the next generation beneficiaries. 

Ashley accordingly sought to have the 2006 and 2009 appointments set aside and the funds returned to the Glenfinnan Settlement and she 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. 

Ashley argued that there had been an improper exercise of a discretionary power by Grampian, as they had either taken into account irrelevant considerations or failed to take into account relevant considerations in exercising their discretion. Ashley accordingly alleged that there had been a breach of trustee duty by Grampian.

Both the first instance court and the Court of Appeal of the Commonwealth of the Bahamas had ultimately found against Ashley. Ashley appealed the latter’s decision and she brought two issues before the JCPC:

1. Did the lower courts err by applying the wrong test when attributing to Spey the wish and intention, when transferring assets to the Glenfinnan Settlement, that those assets should be used to benefit future generations rather than all the beneficiaries of the 1973 Settlement (including Ashley)?
2. Was there a breach of duty by inadequate deliberation and what follows from that?

There was no dispute that the relevant law in the Bahamas is the same as English law.

Issue (1) – the wishes of the corporate settlor 

As established in Pitt v Holt², a settlor’s wishes are always a material consideration in the exercise of fiduciary discretions, however, such wishes should not displace all independent judgement on the part of the trustee. Such wishes or intentions may be communicated informally to the trustee by the settlor and they do not have to be expressed in a formal document. 

In this case, there was a corporate as settlor rather than an individual and accordingly the ordinary rules for “corporate attribution” applied. These rules are set out in Meridian Global Funds Management Asia Limited v Securities Commission³. Spey’s memorandum and articles specified that decisions were to be made by a majority of the board of directors, i.e. two out of three directors, and the lower courts and the JCPC agreed that it was the decision of the majority of the board that formed a relevant consideration for Grampian as trustee. 

The first instance judge did not consider that the 1992 Memorandum could be attributed to the board of Spey. However, the first instance judge had seen contemporaneous documents and heard evidence from witnesses at trial who all gave evidence that their “personal knowledge and understanding” was that in 1992 the proposed intention for the Glenfinnan Settlement was as described in the 1992 Memorandum, namely that the assets settled into the Glenfinnan Settlement should be used for the benefit of future generations, i.e. not at the level of George, John and their respective spouses. The first instance judge was accordingly satisfied that although the 1992 Memorandum could not be attributed to the board of Spey, its contents generally reflected their intention. 

The Court of Appeal of the Bahamas considered that Spey’s intention could reasonably be inferred from the “countless documents” before the first instance judge and the witness evidence that certain family advisers had conveyed all relevant information to Spey’s directors.

The JCPC upheld the decisions of the Court of Appeal of the Bahamas and the first instance judge on the first issue.

Issue (2) – breach of duty by inadequate deliberation 

The JCPC made clear that there are two limbs to be considered when considering inadequate deliberation: (1) breach of fiduciary duty; and (2) the consequences of any such breach; the JCPC considered the lower courts had omitted such bifurcation from their analysis.

The JCPC found that as a beneficiary of the Glenfinnan Settlement at the relevant times (i.e. in 2006 and 2009), information about Ashley’s up-to-date wishes and needs was relevant to the decision being made and ought properly to have been considered, i.e. up-to-date information on Ashley’s wishes and needs was a relevant consideration. Grampian had proceeded on the basis of old information from sources known to be adverse to Ashley (i.e. the family advisers), who had themselves relied upon newspaper reports referring to Ashley’s circumstances. This also went contrary to advice taken from leading counsel in 2006 that the claims of all beneficiaries, including Ashley, should be considered – and Grampian needed to ensure that it had sufficient information in order to do so – but Grampian did not have updated information as to Ashley’s financial circumstances. As such, Grampian failed to take into account a relevant consideration and that was a sufficiently serious failing by Grampian, such as to amount to a breach of fiduciary duty. 

The JCPC turned to the second question, namely the effects of the breach of fiduciary duty. The JCPC considered that the relevant test in this regard was whether but for the breach, the trustee would have, or might have, taken a different decision. Having found as they did on the first issue, i.e. that the wishes and intentions of Spey were found to be that the Glenfinnan Settlement was primarily for the benefit of the next generation, the JCPC considered it “clear that Ashley cannot show that the decision would have been, or even might have been, different had there been no breach of fiduciary duty”. Grampian still retained 2% of the original assets in the trust (now amounting to c.US$14m) to provide for Ashley’s future needs, so the fact that she might require provision in the future had not been ignored. The JCPC concluded that “[Ashley] was a very wealthy woman with funds from other sources, including the estate of her late husband John and, even though there was a breach of the fiduciary duty of proper consideration, Ashley cannot show that the trustee, or a reasonable trustee, would have acted, or even might have acted, any differently had there been no such breach”.

The JCPC found on the second issue that in the exercise of its discretion in dealing with the consequences of Grampian’s breach of the duty of proper consideration, the two appointments in 2006 and 2009 should not be set aside and remained valid appointments. Whilst the JCPC rejected Ashley’s contentions, the JCPC did make clear that “the precise reasoning of the lower courts [on the second issue] was flawed in eliding breach of fiduciary duty with the consequences of breach”.

Concluding remarks

As above, the case acts as a reminder that trustees should maintain current records relating to the financial circumstances and needs of beneficiaries, and assumptions should not be made, based on previous circumstances or publicly available information. 

However, when it comes to assessing a breach of trust, it is both (i) whether an actual breach has occurred; and (ii) the consequences which then stem from the breach, which are important in determining the remedy. If, despite the breach having occurred, it is reasonable to conclude that the trustees would (or might) still have taken the same course of action, it is not a proper exercise of the court’s power to overturn the transaction in question. In practice, this might save actions which would otherwise be undone.

¹ Dawson-Damer v Grampian Trust Company Ltd and another [2025] UKPC 32

² [2013] UKSC 26

³ [1995] 2 AC 500