Part 1 · Trusts
Chapter 1 · Appointment, assumption, resignation, removal and discharge of trustees
Resignation and removal
7Removal of trustee by court#
(1)Where a trustee—
(a)is unfit to carry out the duties of a trustee,
(b)purports to carry out those duties but does so in a way which is inconsistent with, or might be inconsistent with, a trustee’s fiduciary duty,
(d)is incapable, or
(e)is untraceable,
(3)This section applies irrespective of when the trust was created.
8Removal of certain trustees by court: unfitness#
(2)This subsection applies to any trustee—
(a)who is—
(i)an executor nominate of a testator (“T”),
(iii)an executor dative appointed in respect of the estate of a deceased person (“D”), and
(b)who—
(i)is being prosecuted in Scotland for the murder or culpable homicide of T or, as the case may be, D,
(ii)has been convicted, whether before or after the coming into force of this section, in Scotland of such an offence as regards T or, as the case may be, D,
(iii)is being prosecuted in a jurisdiction outside Scotland for an offence which, in the opinion of the court, is equivalent to the murder or culpable homicide of T or, as the case may be, D, or
(iv)has been convicted, whether before or after the coming into force of this section, in a jurisdiction outside Scotland of such an offence as regards T or, as the case may be, D.
(3)For the purposes of subsection (2)(b), a trustee is to be regarded as being prosecuted for an offence if—
(a)a prosecutor has initiated proceedings against the trustee in respect of the offence, and
(b)those proceedings have not been dismissed or resulted in the conviction or acquittal of the trustee in respect of the offence.
(4)This section is without prejudice to any power of the court to find that a trustee to whom subsection (2)(a) applies (but to whom subsection (2)(b) does not apply) is unfit to carry out the duties of a trustee as a result of—
(a)having acted (or being suspected of having acted) in a manner that caused or contributed to the death of T or, as the case may be, D, or
(b)having otherwise been involved (or being suspected of having otherwise been involved) in the death of T or, as the case may be, D.
9Removal of trustee by co-trustees#
(1)A trustee who is—
(a)incapable,
(b)convicted of an offence involving dishonesty,
(c)sentenced to imprisonment on conviction of an offence, or
(d)imprisoned for contempt of court or for not having paid a fine,
may be removed from office by a majority of the other trustees.
(2)Except in so far as the trust deed expressly provides otherwise, a trustee who is—
(a)a member of a regulated profession (such as a solicitor, accountant, financial adviser or teacher), and
(b)appointed or assumed as trustee to provide professional services in relation to managing the affairs of trusts in the course of business,
may, in the circumstances described in subsection (3), be removed from office by a majority of the other trustees.
(3)The circumstances are that the trustee—
(a)is no longer a member of the regulated profession in question, or
(b)is such a member, but is not entitled to practise as such.
(4)In a case where—
(a)two or more trustees meet the description in subsection (2)(a) and (b), and
(b)the circumstances described in subsection (3) apply to each of them,
neither (or none) of those trustees are, for the purpose of section 14, to be regarded as able to make a decision in respect of their removal.
(5)Subsection (6) applies where—
(a)a protector has been appointed in respect of the trust,
(b)there has been conferred on the protector, by virtue of paragraph (a) of section 53(3), the power to direct the removal of a trustee from office, and
(c)the protector gives such a direction.
(6)The trustee to whom the direction relates must, without delay, be removed from office by the other trustees.
(7)A person who is removed from office as trustee under this section is to be given notice of the decision to remove and the date on which it was made as soon as reasonably practicable after it is made.
(8)This section applies—
(a)irrespective of when the trust was created, but
(b)paragraphs (b) to (d) of subsection (1) are to be disregarded in relation to, respectively, a conviction obtained, a sentence passed or an imprisonment effected before the section comes into force.
Chapter 2 · Decision-making by trustees
13Decisions: preliminary#
(1)This section applies in relation to any decision of the trustees which is to bind them.
(2)Except in so far as the trust deed, expressly or by implication, provides otherwise (or, in a case where there is no trust deed, the context requires or implies otherwise), in so far as is reasonably practicable a trustee—
(a)must receive adequate notice of the matter as regards which the decision is to be made, and
(b)must be afforded an opportunity (whether or not at a meeting of the trustees) to express an opinion in the matter before the decision is taken.
(3)But a decision which is invalid by virtue of non-compliance with subsection (2) may be homologated by the trustee in question.
(4)This section applies—
(a)irrespective of when the trust was created, but
(b)only as regards a decision taken after the section comes into force.
14Making of decision#
(1)Except in so far as the trust deed, expressly or by implication, provides otherwise (or, in a case where there is no trust deed, the context requires or implies otherwise), a decision binds the trustees only if made by a majority of those for the time being able to make it.
(2)Except in so far as the trust deed, expressly or by implication, provides otherwise (or, in a case where there is no trust deed, the context requires or implies otherwise), for the purposes of subsection (1) a trustee is not to be regarded as able to make a decision who—
(a)has or might have a personal interest in the decision,
(b)is incapable, or
(c)is untraceable.
(3)But subsection (2)(a) is to be disregarded if (either or both)—
(a)all the beneficiaries know of the personal interest and consent to the trustee acting,
(4)For the purposes of subsection (2)(a), a trustee of a public trust is not to be regarded as having a personal interest in a decision insofar as—
(a)the decision is intended to benefit the public or a particular section of it, and
(b)the trustee in question may derive a benefit from the decision solely as a result of being a member of the public or, as the case may be, the particular section of it.
(5)In subsection (3)(a), the reference to beneficiaries is, in relation to any beneficiary who has not attained the age of 16 years or is incapable, to be construed as a reference to an appropriate person in relation to the beneficiary (see section 81(2)).
(6)This section applies—
(a)irrespective of when the trust was created, but
(b)only as regards a decision taken after the section comes into force.
Chapter 3 · Powers and duties of trustees
Delegation and the appointment of agents and nominees
23Appointment of nominees#
(1)Except in so far as the trust deed expressly provides otherwise, the trustees may, for the purpose of the exercise of any of their powers—
(a)appoint a person to act as their nominee in relation to such of the trust property, heritable as well as moveable, as they may determine (in this section referred to as the “determined assets”), and
(b)take such steps as are requisite to secure the transfer of title to the determined assets to the nominee.
(2)Without prejudice to the generality of subsection (1), reference in that subsection to the powers of the trustees includes a reference to their investment management functions (as defined in section 22(6)).
(3)Determined assets held by the nominee are held on trust for the trustees by the nominee (irrespective of any purported agreement to the contrary).
(4)Determined assets title to which is transferred to the nominee may include clients’ money.
(5)Without prejudice to subsection (3), subsection (1) is subject to any restriction or exclusion imposed by or under any enactment.
(6)A person is not to be appointed under subsection (1)(a) unless the trustees reasonably believe—
(a)the appointment is appropriate in the circumstances of the trust, and
(b)the person has the skills, knowledge and expertise it is reasonable to expect of one who is to act as a nominee.
(7)An appointment under subsection (1)(a) is—
(a)to be made in writing,
(b)to be subject to the trustees obtaining, as soon as is reasonably practicable, the written acknowledgment of the nominee that the determined assets are held on trust for the trustees by the nominee,
(c)to be subject to the trustees retaining power to—
(i)direct the nominee, and
(ii)revoke the appointment, and
(d)subject to subsection (8), otherwise to be on such terms as to suitable remuneration and other matters as the trustees may determine.
(8)The trustees are not to appoint a nominee on any of the terms mentioned in subsection (9) unless they have good cause to do so.
(9)The terms are—
(a)a term permitting the nominee to appoint a substitute,
(b)a term restricting the liability of the nominee, or of any substitute, to the trustees or to any beneficiary, and
(c)a term permitting the nominee, or any substitute, to act in circumstances capable of giving rise to a conflict of interest.
(10)While a nominee continues to act for the trust, the trustees are—
(a)to keep under review—
(i)the arrangements under which the nominee acts, and
(ii)how those arrangements are being put into effect,
(b)to consider, if circumstances make it appropriate to do so, whether there is a need to exercise their power—
(i)to direct the nominee, or
(ii)to revoke the nominee’s appointment.
(11)The trustees are to exercise either or both of the powers mentioned in subsection (10)(b) if they consider that there is a need to do so.
(12)The Scottish Ministers may, by regulations, specify particular circumstances which may constitute a good cause for the purpose of subsection (8).
(13)Regulations under this section are subject to the negative procedure.
(14)This section applies irrespective of when the trust was created.
Sale of property
21Charitable trusts: sale of property#
(1)Except in so far as the trust deed expressly or by implication provides otherwise, the trustees of a charitable trust are not under a duty to achieve best value when selling trust property where—
(a)the property being sold is heritable property, and
(b)the purchaser is a charity.
(2)But this section is without prejudice to any duty imposed by the Charities and Trustee Investment (Scotland) Act 2005 to act in the interests of the charity (see, in particular, section 66 of that Act).
(3)For the purposes of this section, a “charity” is a non-natural person—
(a)registered in the Scottish Charity Register,
(b)which—
(i)is registered as a charity in England and Wales in accordance with section 30 of the Charities Act 2011, or
(ii)by virtue of subsection (2) of that section, is not required to register as a charity under that section,
(c)which—
(i)is registered as a charity in Northern Ireland in accordance with section 16 of the Charities Act (Northern Ireland) 2008, or
(ii)by virtue of subsection (2A) of that section, is not required to register as a charity under that section.
(4)The Scottish Ministers may by regulations modify subsection (3) so as to specify further descriptions of person who are a charity for the purposes of this section.
(5)Regulations under this section are subject to the affirmative procedure.
Part 2 · Succession
Effect of divorce, dissolution or annulment on special destination
Rights of succession to intestate estate
77Rights of succession to intestate estate#
(1)In section 2(1) of the Succession (Scotland) Act 1964 (rights of succession to intestate estate)—
(a)after paragraph (a) insert—“ab where an intestate is survived by a husband, wife or civil partner, but is not survived by any prior relative, the surviving spouse or civil partner shall have right to the whole of the intestate estate;”
(b)paragraph (e) is repealed.
(2)This section does not apply as respects a death that occurred before the section comes into force.
Part 3 · Miscellaneous and general
General
81Interpretation#
(1)In this Act, unless the context otherwise requires—• “beneficiary”, in relation to a trust, means a person having, whether directly or indirectly, a vested or contingent interest under the trust,• “the court” means the Court of Session except that in sections 1, 7, 8, 66, 67, 70, 71, 73 and 74 the expression includes the appropriate sheriff court,• “guardian” includes a person’s continuing attorney,• “potential beneficiary” means a person (whether or not an ascertained person) who—(a) is not a beneficiary, but(b) may become a beneficiary on being, at a future date or on the happening of a future event, a person of some specified description or a member of some specified class of persons,• “private purpose trust” is to be construed in accordance with section 46,• “protector” is to be construed in accordance with section 53(1)(a),• “supervisor” is to be construed in accordance with section 49(1),• “trust” means any trust (whether or not constituted by deed or other writing, by or by virtue of Act of Parliament or of the Scottish Parliament, by Royal Charter, or by resolution of any corporation, public body or ecclesiastical body) but does not include any pension scheme established under a trust,• “trust deed” means any—(a) deed or other writing,(b) enactment,(c) Royal Charter, or(d) resolution of any corporation, public body or ecclesiastical body,which constitutes any trust, and• “trustee” means a trustee under any trust but includes an executor nominate and, except in sections 3 and 5, an executor dative.
(2)In this Act, “appropriate person” means—
(a)in relation to a beneficiary or, as the case may be, potential beneficiary, who has not attained the age of 16 years—
(i)a parent or guardian who has the parental responsibility or parental right to act as that person’s legal representative under section 1(1)(d) or 2(1)(d) of the Children (Scotland) Act 1995 (“the 1995 Act”),
(ii)a person in whom that parental responsibility or parental right is vested by virtue of section 11(2)(b) of the 1995 Act,
(iii)a person having that parental responsibility or parental right by virtue of section 11(12) of the 1995 Act,
(iv)a person in whom that parental responsibility or parental right is vested by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007),
(v)a parent or guardian who has the right, in relation to the beneficiary or potential beneficiary, to act as that person’s legal representative, by virtue of having parental responsibility for that person under Part 1 of the Children Act 1989 (“the 1989 Act”),
(vi)a person having that right, in relation to the beneficiary or potential beneficiary, by virtue of having parental responsibility for that person by virtue of—
(A)section 12(2) of the 1989 Act,
(B)section 14C of the 1989 Act, or
(C)section 25(3) of the Adoption and Children Act 2002,
(vii)a parent or guardian who has that right, in relation to the beneficiary or potential beneficiary, by virtue of having parental responsibility for that person under Part 2 or Part 15 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755) (“the 1995 Order”),
(viii)a person having that right, in relation to the beneficiary or potential beneficiary, by virtue of having parental responsibility for that person under Article 12(2) of the 1995 Order, or
(b)in relation to a beneficiary or, as the case may be, potential beneficiary, who is incapable, that person’s guardian.
(3)In the definition of “the court” in subsection (1), “the appropriate sheriff court” means—
(a)where the sole trustee is, or a majority of the trustees are, habitually resident in a particular sheriffdom—
(i)a sheriff court of that sheriffdom, or
(ii)where a majority of the trustees consent, a sheriff court of any other sheriffdom in which at least one of the trustees is habitually resident, or
(b)where paragraph (a) is not applicable, the sheriff court at Edinburgh.
(4)In the definition of “guardian” in subsection (1), “continuing attorney” is to be construed in accordance with section 15(2) of the Adults with Incapacity (Scotland) Act 2000 (creation of continuing power of attorney).
82Power to amend jurisdiction in relation to trusts#
(1)The Scottish Ministers may by regulations make provision conferring on or removing from the Court of Session or, as the case may be, the appropriate sheriff court, power to decide particular types of cases relating to trusts under this Act.
(2)In particular, the Scottish Ministers may—
(a)make provision modifying section 81 in so far as it relates to the definitions of “the court” and “the appropriate sheriff court” for the purposes of this Act, and
(b)make such incidental, supplementary or consequential provision (including provision modifying this Act or another enactment) relating to the jurisdiction of the Court of Session or the appropriate sheriff court as they consider appropriate for the purposes of giving full effect to the conferral or removal of a power.
(3)Regulations under this section may only be made with the consent of the Lord President of the Court of Session.
(4)Regulations under this section are subject to the affirmative procedure.
83Meaning of incapable and related expressions#
(1)In this Act—
(a)“incapable” (and related expressions) is to be construed in accordance with section 1(6) of the Adults with Incapacity (Scotland) Act 2000 (fundamental definitions), but with the modification that the reference in the closing words of that definition to any provision of that Act is to be read as to any provision of this Act,
(b)a reference to a person having legal capacity is a reference to a person who—
(i)is not incapable, and
(ii)does not otherwise lack legal capacity (for example, by reason of non-age).
(2)The Scottish Ministers may by regulations—
(a)make provision modifying the effect of the definition of “incapable” in the Adults with Incapacity (Scotland) Act 2000 as it applies for the purposes of this Act by virtue of this section, or
(b)amend this section to replace or modify the definition of “incapable” for the purposes of this Act.
(3)Regulations under this section are subject to the affirmative procedure.
86Ancillary provision#
(1)The Scottish Ministers may by regulations make any incidental, supplementary, consequential, transitional, transitory or saving provision they consider appropriate for the purposes of, in connection with or for giving full effect to this Act.
(2)Regulations under this section may—
(a)make different provision for different purposes,
(b)modify any enactment (including this Act).
(3)Regulations under this section—
(a)are subject to the affirmative procedure if they add to, replace or omit any part of the text of an Act, and
(b)are otherwise subject to the negative procedure.
87Repeals#
The enactments mentioned in schedule 2 are repealed to the extent mentioned in the second column of that schedule.
88Commencement#
(1)This section and sections 86 and 89 come into force on the day after Royal Assent.
(2)Sections 76 and 77 come into force at the end of the period of 3 months beginning with the day of Royal Assent.
(3)The other provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint.
(4)Regulations under this section may—
(a)include transitional, transitory or saving provision,
(b)make different provision for different purposes.
Miscellaneous
80Amendment of Confirmation of Executors (Scotland) Act 1858#
After section 6 of the Confirmation of Executors (Scotland) Act 1858, insert—“6A 1 This section applies where a sheriff is in receipt of a petition for the appointment of a person (“P”) as an executor dative in respect of the estate of a deceased person (“D”).2 The sheriff must refuse the petition if satisfied that P is a person falling within subsection (3).3 A person falls within this subsection if that person—a is being prosecuted in Scotland for the murder or culpable homicide of D,b has been convicted, whether before or after the coming into force of this section, in Scotland of such an offence as regards D,c is being prosecuted in a jurisdiction outside Scotland for an offence which, in the opinion of the sheriff, is equivalent to the murder or culpable homicide of D, ord has been convicted, whether before or after the coming into force of this section, in a jurisdiction outside Scotland of such an offence as regards D.4 For the purposes of subsection (3), a person is to be regarded as being prosecuted for an offence if—a a prosecutor has initiated proceedings against the person in respect of the offence, andb those proceedings have not been dismissed or resulted in the conviction or acquittal of the person in respect of the offence.5 If, despite subsection (1) or any rule of law to the contrary, a person falling within subsection (3) is appointed as an executor dative in respect of D’s estate—a the person’s appointment as executor dative is not invalid by reason of the fact that the person falls within subsection (3), butb the appointment does not prevent the removal of that person from office following the making of an application under section 7 of the Trusts and Succession (Scotland) Act 2024 (as read with section 8 of that Act) on the ground that the person is unfit to carry out the duties of a trustee.6 This section is without prejudice to any power of a sheriff to refuse a petition for the appointment of P in any case where—a P does not fall within subsection (3), butb P—i has acted (or is suspected of having acted) in a manner that caused or contributed to the death of D, orii has otherwise been involved (or is suspected of having otherwise been involved) in the death of D.”
Schedule 2 · Repeals
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