Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Trusts and Succession (Scotland) Act 2024

Type Act of the Scottish Parliament

Publication 2024-01-30

Last updated 2024-06-26

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(a) the rule known as the rule in Frog’s Creditors (which provides that a conveyance to a non-existent or unascertainable person, with the grant of a liferent to a living individual, results in that individual becoming owner), and

(b) the rule known as the rule in Newlands (which provides that a conveyance such as is mentioned in paragraph (a), but with the grant in question described as being for the liferent use allenarly of the living individual, results in that individual becoming fiduciary fiar and not owner).

(5) This section does not apply—

(a) as respects a trust created before the section comes into force (except in so far as the trust deed expressly provides for accumulation in anticipation of any change in the law), or

(b) as respects a public trust which is not a charitable trust.

Chapter 6 — Private purpose trusts

Private purpose trusts: general

46

(1) A private purpose trust exists where—

(a) the trust property is held by, or is vested in, a trustee for the furtherance of a specific purpose which is not a charitable or other public purpose, and

(b) the trust is not constituted solely for the benefit of a specific beneficiary (or potential beneficiary).

(2) For the purposes of subsection (1), it is immaterial whether the trust property is also held by, or vested in, the trustee for the benefit of any person (whether or not a person yet ascertained or in existence).

(3) This section applies irrespective of when the trust was created.

Applications to the court

Application for order requiring fulfilment of purpose of private purpose trust

47

(1) Any person with an interest in the purpose of a private purpose trust (including, without prejudice to the generality of section 50 (1)(a), any supervisor) may apply to the court for an order requiring steps to be taken for the fulfilment of that purpose.

(2) This section applies irrespective of when the trust was created.

Application to reform trust

48

(1) This section applies where property is held for the specific purpose of a private purpose trust.

(2) If executing the trust in accordance with its terms becomes, whether in relation to all or only to part of the property—

(a) impossible or impracticable,

(b) unlawful or contrary to public policy, or

(c) inappropriate because, by reason of changed circumstances, to do so would no longer accord with the general intent of the trust,

the trustees or (unless the trust deed expressly or impliedly excludes the possibility) a supervisor may apply to the court to reform the trust.

(3) On such application the court—

(a) may direct that the trust property, or where the application relates only to part of the trust property the part in question, be held for such other purpose as it considers to be consistent with the spirit of the truster’s directions, or

(b) if it is of the opinion that the trust cannot be reformed consistently with the spirit of those directions, may direct—

(i) where the application relates to all of the trust property, that the trustees dispose of that property as though the trust has failed, or

(ii) where the application relates only to part of the trust property, that the trustees dispose of that part as though the trust has failed in relation to that part.

(4) But subsections (2) and (3) are to be disregarded if the trust can be reformed in accordance with its own terms.

(5) This section applies irrespective of when the trust was created.

Supervisors

Appointment of supervisor

49

(1) The truster may, in respect of a private purpose trust, by the trust deed make provision for the appointment of a person (to be known as a “supervisor”) to oversee the fulfilment by the trustees of the trust’s specific purpose.

(2) The duties of the supervisor are fiduciary obligations; and the supervisor is subject to a duty of care.

(3) It is not competent to appoint—

(a) a trustee to be a supervisor of the trust, or

(b) a supervisor of the trust to be a trustee.

(4) Except in so far as the trust deed, expressly or by implication, provides otherwise, it is competent for there to be more than one supervisor of the trust at any time.

(5) Subsection (6) applies where—

(a) the terms of a private purpose trust require the appointment of a supervisor but it is impossible, difficult or inexpedient to make the appointment without the court’s assistance, or

(b) no supervisor exists or is traceable who has the legal capacity, and is willing and fit, to carry out the duties of that office.

(6) The court may appoint a person to be a supervisor of the private purpose trust—

(a) in the case mentioned in paragraph (a) of subsection (5), on the application of—

(i) the trustees,

(ii) a supervisor, or

(iii) any other person with an interest in the trust, or

(b) in the case mentioned in paragraph (b) of that subsection, on the application of—

(i) the trustees, or

(ii) any other person with an interest in the trust.

(7) The making of an appointment under subsection (6)(b) removes any existing supervisor from office.

(8) This section applies irrespective of when the trust was created.

Rights and remedies of supervisor

50

(1) Except in so far as the trust deed, expressly or by implication, provides otherwise, the supervisor of a private purpose trust has the same rights as a beneficiary would have—

(a) to bring an action, or make an application to the court, in respect of the trust,

(b) to be informed by the trustees of the terms of the trust deed,

(d) to inspect, and take copies of, the trust documents.

(2) Subsections (4) and (6) to (9) of section 30 apply to a disclosure to a supervisor by virtue of subsection (1) as they apply to a disclosure to a beneficiary by virtue of subsection (1)(a) of that section.

(3) The supervisor has, in the performance of the supervisor’s duties as respects the private purpose trust, the same rights as a trustee would have—

(a) to protection and indemnity, and

(b) to make an application to the court for—

(i) an opinion,

(ii) advice or direction, or

(iii) relief from personal liability.

(4) In the event of a breach of trust, the supervisor has, on behalf of the private purpose trust, the same remedies against the trustees or a third party as a beneficiary would have.

(5) This section applies irrespective of when the trust was created.

Application to supervisors of certain provisions relating to removal from office and to decision making

51

(1) Sections 7, 13 and 14 apply in relation to a supervisor and the duties of a supervisor as they apply in relation to a trustee and the duties of a trustee.

(2) This section applies irrespective of when the trust was created.

Resignation of supervisor

52

(1) A supervisor has power to resign office by notice in writing sent to the trustees.

(2) The resignation takes effect on receipt of that notice.

(3) But any resignation sent under this section in order to facilitate a breach of trust is of no effect.

(4) This section applies irrespective of when the trust was created.

Chapter 7 — Protectors

Protectors

53

(1) The truster may by the trust deed—

(a) make provision for the appointment of a person (to be known as a “protector”) to oversee the exercise by the trustees of their functions, and

(b) require the trustees to obtain the consent of the protector before exercising (or before exercising in circumstances specified in the trust deed) such of those functions as may be so specified.

(2) For the purposes of subsection (1) the truster may, by the trust deed, confer powers on the protector.

(3) Without prejudice to the generality of subsection (2), powers conferred by virtue of that subsection may include the power to—

(a) direct the trustees to remove, under section 9 (1), one of their number from office,

(b) direct the trustees to assume, under section 3 (1), an additional trustee,

(i) a person being given or refused a beneficial interest, or

(ii) such other matter to which consent may be required by trustees by virtue of subsection (1)(b),

(d) make an application under section 65 (1),

(e) oppose any application made under that section,

(f) verify the trust accounts, and

(g) represent—

(i) an incapable person,

(ii) a person who has not attained the age of 16 years,

(iii) a beneficiary not yet ascertained,

(iv) a potential beneficiary not yet ascertained, or

(v) a person who is untraceable.

(4) Except in so far as the trust deed, expressly or by implication, provides otherwise, the protector may, on application to the trustees, inspect, without charge and at any reasonable time, any document held by them or on their behalf.

(5) The duties of the protector are fiduciary obligations; and the protector is subject to a duty of care.

(6) It is not competent to appoint—

(a) a trustee to be the protector of the trust, or

(b) the protector of the trust to be a trustee.

(7) It is competent for the truster to appoint the truster’s own self to be the protector of the trust.

(8) Except in so far as the trust deed, expressly or by implication, provides otherwise, it is competent for there to be more than one protector of the trust at any time.

(9) This section applies irrespective of when the trust was created.

Appointment of new protector

54

(1) Subsection (2) applies where—

(a) by the trust deed, the truster appointed a protector, but

(b) no protector exists or is traceable who has the legal capacity, and is willing and fit, to carry out the duties of that office.

(2) The truster may appoint a new protector.

(3) But if the truster has died or is incapable then, except in so far as the trust deed, expressly or by implication, provides otherwise, the trustees may appoint a new protector in the circumstances mentioned in paragraphs (a) and (b) of subsection (1).

(4) The making of an appointment under subsection (2) or (3) removes any existing protector from office.

(5) This section applies irrespective of when the trust was created.

Application to protectors of certain provisions relating to removal from office and to decision making

55

(1) Sections 7, 13 and 14 apply in relation to a protector and the duties of a protector as they apply in relation to a trustee and the duties of a trustee.

(2) This section applies irrespective of when the trust was created.

Resignation of protector

56

(1) A protector has power to resign office by notice in writing sent to the trustees.

(2) The resignation takes effect on receipt of that notice.

(3) But any resignation sent under this section in order to facilitate a breach of trust is of no effect.

(4) This section applies irrespective of when the trust was created.

Liability for compliance with protector’s direction

57

(1) This section applies where a trustee complies timeously and correctly with a protector’s direction (being a direction which the protector has power to give).

(2) In so far as such compliance comprises the breach of a duty owed to a beneficiary or third party then, except in so far as the trust deed expressly provides otherwise, the protector, and not the trustee, incurs personal liability for any resultant harm.

(3) This section applies irrespective of when the trust was created.

Chapter 8 — Powers of the court

Variation and termination of private trusts

Arrangements to vary or terminate a trust etc.

58

(1) This section applies to an arrangement which—

(a) varies the purposes of a trust,

(b) terminates a trust, whether in whole or in part,

(d) creates a new trust in relation to all or part of trust property.

(2) The arrangement may be made if agreement or approval is given in accordance with section 59 by or on behalf of each beneficiary, and of each potential beneficiary, of the trust in question.

(3) This section is subject to section 62.

(4) This section—

(a) applies irrespective of when the trust was created, but

(b) does not apply as respects a private purpose trust or a public trust.

Agreement or approval for purposes of section 58(2)

59

(1) In this section “agreement” means agreement for the purposes of section 58 (2) and “approval” means approval for those purposes.

(2) Agreement may be given by a beneficiary if the beneficiary either—

(a) has attained the age of 18 years and is capable, or

(b) is not a natural person.

(3) Approval may be given by a potential beneficiary if that person falls within subsection (7).

(4) Approval on behalf of a person who is incapable may be given by any person authorised to give it and having powers relating to the matter—

(a) under the Adults with Incapacity (Scotland) Act 2000, or

(b) under the law of a country other than Scotland.

(5) Approval may be given by the court on behalf of—

(a) a person who has not attained the age of 18 years,

(b) a person who is incapable,

(d) an unborn person, or

(e) a person who is untraceable.

(6) The powers of the court under subsection (5) are exercisable on the application of the trustees or of any of the beneficiaries.

(7) A potential beneficiary falls within this subsection where—

(a) the potential beneficiary either—

(i) has attained the age of 18 years and is capable, or

(ii) is not a natural person, and

(b) the potential beneficiary would be of the specified description, or as the case may be a member of the specified class, if—

(i) the future date were the date of the hearing of the application for approval, or

(ii) the future event had happened at the date of that hearing.

(8) In subsection (7)(b), “specified description”, “specified class”, “future date” and “future event” are to be construed by reference to the definition, in section 81 (1), of “potential beneficiary”.

(9) This section—

(a) applies irrespective of when the trust was created, but

(b) does not apply as respects a private purpose trust or a public trust.

Giving of approval by court

60

(1) The court is to give approval under section 59 (5) only if it is of the opinion that the carrying out of the arrangement in question would not be prejudicial to the person on whose behalf the approval is sought.

(2) Except that subsection (1) does not apply where the approval is sought under—

(a) paragraph (c) of section 59 (5) on behalf of a potential beneficiary who cannot be ascertained if the court is satisfied that there is no reasonable likelihood of the event taking place which would make that person a beneficiary, or

(b) paragraph (d)of that section if the court is satisfied that there is no reasonable likelihood of the person on whose behalf the approval is sought being born.

(3) In considering, for the purposes of subsection (1), whether the carrying out of an arrangement would be prejudicial to a person the court may have regard to—

(a) any economic or other benefit which the person is likely to receive from the arrangement,

(b) any economic or other detriment which the person is likely to sustain in consequence of the arrangement,

(d) such other factors as seem to the court to be material.

(4) This section—

(a) applies irrespective of when the trust was created, but

(b) does not apply as respects a private purpose trust or a public trust.

Interests of negligible value

61

(1) This section applies in relation to loss sustained by—

(a) a beneficiary, or

(b) a potential beneficiary,

(either such person being referred to in this section as “B”) as a consequence of the making of an arrangement to which section 58 applies.

(2) The trustees are not liable to B for the loss if—

(a) B was a beneficiary, or potential beneficiary, when the arrangement was made,

(b) agreement by, or approval on behalf of, B to the arrangement (being agreement or approval in accordance with section 59) was not given, and

(c) prior to the arrangement being made the court, on the application of the trustees or of any of the beneficiaries, was satisfied either—

(i) that B’s interest was so remote as to be of negligible value, or

(ii) that, in the event of B becoming a beneficiary, B’s interest would be so remote as to be of negligible value.

(3) This section—

(a) applies irrespective of when the trust was created, but

(b) does not apply as respects a private purpose trust or a public trust.

Arrangements to vary or revoke alimentary purposes

62

(1) Where a beneficiary under a trust has entered into enjoyment of—

(a) an alimentary liferent of, or

(b) any alimentary income from,

the trust property, or any part of the trust property, an arrangement to vary or revoke the alimentary purpose in question requires the authorisation of the court under this section as well as agreement or approval given in accordance with section 59.

(2) The court may give authorisation under this section if it considers that the carrying out of the arrangement would be reasonable having regard to—

(a) the income of the beneficiary from all sources, and

(b) such other factors as seem to the court to be material.

(3) The powers of the court under this section are exercisable on the application of the trustees or of any of the beneficiaries.

(4) Subsection (1) does not apply to an alimentary purpose created by a woman in her own favour prior to 24th July 1984.

(5) In this section, “alimentary purpose” means a trust purpose entitling the beneficiary to an alimentary liferent of, or alimentary income from, the trust property or any part of the trust property.

(6) This section—

(a) applies irrespective of when the trust was created, but

(b) does not apply as respects a private purpose trust or a public trust.

Views of persons under 18

63

(1) This section applies where the court is considering whether—

(a) to give, on behalf of a person who—

(i) has not attained the age of 18 years, and

(ii) is capable,

approval under section 59 (5) to an arrangement, or

(b) to authorise, under section 62, an arrangement in a case where the alimentary beneficiary is a person mentioned in paragraph (a).

(2) Where the person has attained the age of 16 years but not that of 18 years, the court is to have regard to the person’s views in relation to the arrangement.

(3) Where the person has not attained the age of 16 years, the court is to—

(a) give the person an opportunity to express the person’s views in relation to the arrangement in—

(i) the manner that the person prefers, or

(ii) a manner that is suitable to the person if the person has not indicated a preference or it would not be reasonable in the circumstances to accommodate the person’s preference, and

(b) have regard to any views expressed by the person, taking into account the person’s age and maturity.

(4) But the court is not required to comply with subsection (3) if satisfied that the person is not able to form a view.

(5) For the purpose of subsection (4), the person is to be presumed to be able to form a view unless the contrary is shown.

(6) This section—

(a) applies irrespective of when the trust was created, but

(b) does not apply as respects a private purpose trust or a public trust.

No requirement for agreement of truster

64

(1) An arrangement referred to in section 58 (1) or 62 (1) may be made without the agreement of the truster unless that person is, other than by virtue of being the truster, a beneficiary or potential beneficiary of the trust.

(2) This section—

(a) applies irrespective of when the trust was created, but

(b) does not apply as respects a private purpose trust or a public trust.

Alteration of trust purposes

Alteration of trust purposes on material change in circumstances

65

(1) The court may, if satisfied—

(a) in the case of an inter vivos trust, that there has been a material change in circumstances since the trust was created (or that such a change is reasonably to be regarded as in prospect), or

(b) in the case of a testamentary trust—

(i) that there has been a material change in circumstances since the testamentary writing was executed (or that such a change is reasonably to be regarded as in prospect), and

(ii) that the testator is dead,

alter the trust purposes in so far as it is, in the opinion of the court expedient to do so to offset or counter the effect, or as the case may be the prospective effect, of the change in circumstances.

(2) The power in subsection (1) is exercisable on the application of a person mentioned in subsection (9) in relation to any trust other than a commercial trust or a public trust.

(3) Any other person mentioned in subsection (9) may oppose the application.

(4) As respects an inter vivos trust, if the trust deed provides expressly that the purposes of the trust may not be altered by the court during (either or both)—

(a) the lifetime of the truster,

(b) such period of up to 25 years from the date of the creation of the trust (as may be specified in the deed),

no application may be made under this section in contravention of that provision.

(5) A provision in an inter vivos trust deed that provides expressly that the purposes of the trust may not be altered by the court for a period longer than one mentioned in subsection (4)(b) is to be read as specifying that the purposes may not by altered until (the later of)—

(a) the death of the truster, or

(b) a period of 25 years has elapsed since the date of the creation of the trust.

(6) Subject to subsection (7), as respects a testamentary trust, if the trust deed provides expressly that the purposes of the trust may not be altered by the court during such period of up to 25 years from the date of death of the testator, no application may be made under this section in contravention of that provision.

(7) The court may, if satisfied that there was a period between the change of circumstances mentioned in subsection (1)(b)(i) and the date of death, during which the testator (either or both)—

(a) was incapable,

(b) was unaware (or could not reasonably supposed to have been aware) of the change and its effect on the trust,

determine that the period provided for in subsection (6) began to run, not from the date of death, but from the date of the change of circumstances or, if the court thinks fit, from the commencement of the period of incapacity or unawareness.

(8) A provision in a testamentary trust deed that provides expressly that the purposes of the trust may not be altered by the court for a period longer than one mentioned in subsection (6) is to be read as specifying that the purposes may not by altered until a period of 25 years has elapsed since the date of death of the testator.

(9) The persons are—

(a) the trustees,

(b) in the case of an inter vivos trust, the truster,

(d) a beneficiary or potential beneficiary,

(e) a descendant or ancestor of a beneficiary or potential beneficiary,

(f) an appropriate person in relation to a beneficiary or potential beneficiary (see section 81(2)),

(g) a judicial factor, and

(h) unless the trust deed expressly or impliedly excludes the possibility—

(i) a protector, and

(ii) a supervisor.

(10) Without prejudice to the generality of subsection (1), in the exercise of its power under that subsection the court—

(a) is in particular to have regard—

(i) to the intentions, or probable intentions, of the truster as they appear from the trust deed or testamentary writing and from such other evidence as is available to the court (except that if those intentions, or probable intentions, cannot be ascertained the court is instead to have regard to the probable intentions of a reasonable truster in the circumstances current when the power is exercised),

(ii) to whether the beneficiaries consent to the alteration in question, and

(iii) to the fairness of that alteration,

(b) may bring the trust to an end whether in whole or in part, and

(11) For the purposes of subsection (10)(a), any intention, or probable intention, to exclude the exercise of the court’s powers under subsection (1) may be disregarded.

(12) In this section “change in circumstances” includes (without prejudice to the generality of the expression) a change in—

(a) the nature or amount of the trust property,

(b) the personal or financial circumstances of—

(i) a member of the truster’s family, or

(ii) any other person intended to be benefited by the trust, or

(13) In deciding, for the purposes of this section, if a trust is a commercial trust, the court is in particular to have regard to whether—

(a) the trust is set up under, or by virtue of, a contract (bilateral or multilateral) of a commercial nature, or

(b) the truster has settled property into the trust for value.

(14) For the purposes of this section “commercial trust”—

(a) means a trust which—

(i) forms part of a commercial arrangement, and

(ii) is intended to further that arrangement, and

(b) without prejudice to that generality, includes—

(i) a life assurance policy,

(ii) a unit trust or any other trust-based investment scheme, and

(iii) a trust created under or comprised in a partnership agreement.

(15) This section—

(a) applies irrespective of when the trust was created, and

(b) is without prejudice to section 67.

Powers in relation to ex officio trustees

Appointment by the court of a trustee to take the place of an ex officio trustee

66

(1) The court may, as regards any trust, on the application of an ex officio trustee appoint a person nominated by the applicant to be a trustee in place of the applicant if the court—

(a) considers it expedient to do so for the administration of the trust, and

(b) is satisfied that the power to make such a nomination is not, expressly or by implication, excluded by the trust deed.

(2) The making of an appointment under subsection (1) removes the applicant from the office of trustee.

(3) A person who, having been nominated under subsection (1), still holds the office of trustee as at the date mentioned in subsection (4), ceases to hold the office of trustee on that date.

(4) The date referred to in subsection (3) is the date on which the nominator ceases to hold the office by virtue of which that person was an ex officio trustee when the nomination was made.

(5) In subsection (1), the expression “in place of” is not to be construed as implying that the person appointed is to be in any way dependent upon, or under the direction of, the nominating trustee.

(6) This section applies irrespective of when the trust was created.

Office supplying ex officio trustee

67

(1) Where the holder of an office specified in a trust deed is (in terms of the trust deed) eligible to be a trustee by virtue only of being the holder of that office, the court may remove the specification of the office from the trust deed on the application of the trustees.

(2) Where the specified office is extant, an application under subsection (1) may also be made by—

(a) the holder, or

(b) the body of which the holder is an officer.

(3) If an application under subsection (1) seeks the specification of a different office in substitution for the specification removed, the court may make that substitution if satisfied either—

(a) that the specification sought is more appropriate to the purposes of the trust than the specification removed, or

(b) that the office removed is no longer extant.

(4) This section applies irrespective of when the trust was created.

Application in respect of defective exercise of fiduciary power etc.

68

(1) This section applies where a relevant person—

(a) considers that a trustee has taken a decision in purported exercise of a fiduciary power but that taking it was a defective exercise of the power, or

(b) reasonably apprehends that a trustee is about to take a decision in purported exercise of a fiduciary power but that taking it would be a defective exercise of the power.

(2) The relevant person may apply to the court for an appropriate remedy in respect of the decision taken or as the case may be of the decision which is about to be taken.

(3) The grounds on which the court may grant such a remedy are—

(a) that the trustee, in taking the decision, either has considered (or would be considering) the wrong question or has not considered (or would not be considering) the correct question,

(b) that the trustee, in taking the decision, either has failed (or would be failing) to take a relevant consideration into account or has taken (or would be taking) an irrelevant consideration into account,

(d) that taking the decision was (or would be) fraud on a power,

(e) that in taking the decision the trustee failed (or would be failing) to act honestly or in good faith,

(f) where the application is made in respect of a decision mentioned in paragraph (a) of subsection (1)—

(i) that no reasonable person, properly instructed as to the facts and the law, could have come to the decision, or

(ii) that in some other way the decision was perverse,

(g) where the application is made in respect of a decision mentioned in paragraph (a) of subsection (1), that the decision would not have been taken but for the trustee being in error as to fact or law, and

(h) where the application is made in respect of a decision mentioned in paragraph (b) of subsection (1), that to take the decision would be perverse.

(4) Where the application is made in respect of a decision mentioned in paragraph (a) of subsection (1), paragraph (a) of subsection (3) applies whether or not the trustee purported to consider the correct question.

(5) For the purposes of subsection (3)(g), the error—

(a) must relate to the factual or legal situation at the time the decision in question was taken, and

(b) need not be as to the effect or consequence of that decision.

(6) Nothing in this section limits the power of the court, when considering whether it is appropriate to grant a remedy on the ground described in subsection (3)(g), to take into account the purpose (or likely purpose) of the relevant person making the application (for example, that the application is being made wholly or mainly for the purpose of avoiding the tax consequences of the trustee’s decision).

(7) In this section—

(a) “appropriate remedy” means—

(i) where the application is made in respect of a decision mentioned in paragraph (a) of subsection (1), reduction (whether partial or full), rectification, or declarator, and

(ii) where the application is made in respect of a decision mentioned in paragraph (b) of that subsection, interdict, and

(b) “relevant person” means—

(i) the truster, a trustee, a beneficiary or a potential beneficiary,

(ii) any protector or supervisor, and

(iii) any other person if that other person has a patrimonial interest in the exercise of the fiduciary power in question (or in its not being exercised).

(8) This section applies—

(a) irrespective of when the trust was created, but

(b) only as regards a decision taken (or, as the case may be, which it is reasonably apprehended will be taken) after the section comes into force.

Directions relating to trust matters and the estates of deceased persons

Applications in relation to trusts and to the estates of deceased persons

69

(1) Trustees, protectors or supervisors under a trust deed, or any other person with an interest in the trust property, may apply to the Court of Session for a direction on questions relating to—

(a) the investment, distribution, management or administration of the trust estate, or

(b) the exercise of any power vested in, or the performance of any duty imposed on, the trustees notwithstanding that such direction may affect contingent interests in the estate, whether of persons in existence at, or of persons who may be born after, the date of the direction.

(2) An executor (nominate or dative) of a person who dies after the coming into force of this section may, whether or not there is a testamentary trust, apply to the Court of Session for a direction on questions relating to—

(a) the investment, distribution, management or administration of the person’s estate,

(b) the exercise of any power vested in, or the performance of any duty imposed on, the executor notwithstanding that such direction may affect contingent interests in the estate, whether of persons in existence at, or of persons who may be born after, the date of the direction.

(3) In subsection (1)—

“protector” is to be construed in accordance with section 53(1)(a), and

“supervisor” is to be construed in accordance with section 49(1).

Expenses

Expenses of litigation

70

(1) Subject to the following provisions of this section, a trustee does not incur personal liability for the expenses of civil litigation to which the trust is party.

(2) A trustee may be found personally liable, in whole or in part, for the expenses of civil litigation to which the trust is party if—

(a) the litigation is, in the opinion of the court, unnecessary,

(b) the litigation relates to the trustee’s opposing the appointment of a judicial factor to administer the trust in place of the trustee and the trustee is unsuccessful both—

(i) in opposing the appointment, and

(ii) as regards being removed from office,

(c) the litigation relates to the trustee’s opposing the reduction of the trust deed and the trustee is unsuccessful in opposing the reduction,

(d) the trustee has, by breach of duty, brought about the litigation,

(e) the trustee is part of a minority of the body of trustees and that minority has, in the name of the trust, pursued the litigation—

(i) without consulting such of the other trustees as are both capable and traceable, and

(ii) unsuccessfully,

(f) the trustee is part of a minority of the body of trustees and that minority has, in the name of the trust, defended the litigation—

(i) without consulting such of the other trustees as are both capable and traceable, and

(ii) without the defence being of any benefit to the trust, or

(g) the trust property is (or is likely to be) insufficient to meet the expenses incurred.

(3) Where, by virtue of subsection (2)(a) to (f), a trustee is found personally liable for the expenses of civil litigation to which the trust is party, the court may allow the trustee relief against the trust property if and in so far as the court considers it appropriate to do so.

(4) Where a trust is party to an ongoing civil litigation the court may, on the application of a party, make a determination about the personal liability (or relief from such liability) of a trustee for expenses yet to be incurred.

(5) This section applies irrespective of when the trust was created.

Expenses of application

71

(1) Any question of expenses in relation to an application under this Act is to be determined by the court.

(2) Without prejudice to the generality of subsection (1), the court may, if it considers it reasonable to do so, direct that any such expenses be paid out of the trust property.

Miscellaneous powers

Authorisation to make payments on basis that an event has or has not occurred or will or will not occur

72

(1) The court may, on the application of one or more of the trustees or of any person with an interest in the trust property, grant an order authorising the trustees to make payments from the trust property on the basis that an event specified in the application—

(a) has, or has not, occurred, or

(b) will, or will not, occur.

(2) An order under subsection (1) may be granted on such conditions as the court thinks fit to impose.

(3) Should it be found that the basis on which the order was granted was untrue, a trustee who has acted in accordance with the order incurs no personal liability unless, in connection with the making of the application—

(a) some relevant fact was concealed from the court—

(i) by the trustee, or

(ii) by some other person and the trustee knew, or ought to have known, of the concealment, or

(b) there were fraudulent actings—

(i) on the part of the trustee, or

(ii) on the part of some other person and the trustee knew, or ought to have known, of those actings and that they were fraudulent.

(4) This section is without prejudice to any right of a beneficiary to recover trust property from a person to whom, by virtue of the order, a payment has been made or from any successor of such a person.

(5) This section applies irrespective of when the trust was created.

Completion of title by beneficiary

73

(1) A beneficiary absolutely entitled to heritable or incorporeal moveable property, title to which has been taken in the name of a trustee who has died or become incapable without having executed a conveyance (or as the case may be an assignation) of the property, may apply to the court for authority to complete title to the property in the beneficiary’s own name.

(2) The court may, on any such application, grant warrant for completing title to the property.

(3) Any such warrant is effectual as a conveyance (or as the case may be as an assignation) of the property in favour of the beneficiary.

(4) Reference in subsections (1) and (3) to a beneficiary includes reference to any person deriving right from a beneficiary.

(5) This section applies irrespective of when the trust was created.

Warrant to vest corporeal moveable property in beneficiary where trustee has died or become incapable

74

(1) This section applies where—

(a) a trustee has died or become incapable vested in corporeal moveable property to which a beneficiary is absolutely entitled, but

(b) delivery of the property to, or possession of the property by, the beneficiary is required for the property to vest in the beneficiary.

(2) The court may, on the application of the beneficiary, grant warrant for the property to vest in the beneficiary.

(3) Any such warrant is effectual to vest the property in the beneficiary, as at the date of the warrant, as if the beneficiary had taken delivery or possession of the property on that date.

(4) Reference in subsections (1) to (3) to a beneficiary includes reference to any person deriving right from a beneficiary.

(5) This section applies irrespective of when the trust was created.

Superintendence order as to investment and distribution of trust property

75

(1) The court may, on the application of one or more of the trustees, order the accountant of court to superintend the trustees’ administration of the trust insofar as that administration relates to—

(a) the investment of trust property, and

(b) the distribution of trust property among creditors and beneficiaries.

(2) If the order (to be known as a “superintendence order”) is granted, the accountant of court—

(a) must, annually, examine and audit the trustees’ accounts, and

(b) may report to the court, and obtain the court’s directions, on any question which may arise with regard to the administration superintended.

(3) This section applies irrespective of when the trust was created.

Part 2 — Succession

Effect of divorce, dissolution or annulment on special destination

76

In section 2(2) of the Succession (Scotland) Act 2016 (effect of divorce, dissolution or annulment on special destination), after “succession to” insert “A’s interest in”.

Rights of succession to intestate estate

77

(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.

Application to court by survivor for provision on intestacy

78

In section 29(6) of the Family Law (Scotland) Act 2006 (application to court by survivor for provision on intestacy), for “6” substitute “12”.

Part 3 — Miscellaneous and general

Miscellaneous

Amendment of Requirements of Writing (Scotland) Act 1995

79

(1) In section 7(7) of the Requirements of Writing (Scotland) Act 1995 (subscription and signing), after “partnerships,” insert “bodies of trustees,”.

(2) In schedule 2 of that Act (subscription and signing: special cases), after paragraph 2 insert—

(2A) (1) Except where an enactment or the trust deed expressly provides otherwise, where a granter of a document executed after the commencement of section 79 of the Trusts and Succession (Scotland) Act 2024 is a body of trustees, the document is signed by that body if it is signed on the body’s behalf either by a majority of the trustees or by a person (whether or not one of the trustees) authorised to sign the document on the body’s behalf. (2) Sub-paragraph (1) of this paragraph applies in relation to the signing of an alteration to a document as it applies in relation to the signing of a document. (3) In this paragraph, “trust” has the meaning assigned to that expression by section 81 (1) of that Act of 2024.

Amendment of Confirmation of Executors (Scotland) Act 1858

80

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, or (d) 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, and (b) 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), but (b) 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), but (b) P— (i) has acted (or is suspected of having acted) in a manner that caused or contributed to the death of D, or (ii) has otherwise been involved (or is suspected of having otherwise been involved) in the death of D.

General

Interpretation

81

(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— is not a beneficiary, but 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— deed or other writing, enactment, Royal Charter, or 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

(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).

Power to amend jurisdiction in relation to trusts

82

(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.

83

(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.

Persons who are untraceable

84

For the purposes of sections 1 (1)(b), 2 (1), 5 (5)(a)(i), 7 (1)(e), 14 (2)(c), 44 (1), 49 (5)(b), 53 (3)(g)(v), 54 (1)(b), 59 (5)(e), 70 (2)(e)(i) and 70 (2)(f)(i) (and without prejudice to the generality of those sections) a person is to be regarded as untraceable if—

(a) the person has not been traced, and

(b) in the case of—

(i) section 1 (1)(b), 7 (1)(e), 49 (5)(b), 53 (3)(g)(v), 59 (5)(e), 70 (2)(e)(i) or 70 (2)(f)(i) the court is satisfied that reasonable steps have been taken to trace the person,

(ii) section 2 (1), the truster is so satisfied,

(iii) section 5 (5)(a)(i), 14 (2)(c) or 44 (1), every trustee who is both capable and has been traced is so satisfied, or

(iv) section 54 (1)(b), the truster is so satisfied (or if the truster is not alive or is not capable, every trustee who is both capable and has been traced is so satisfied).

Modification of enactments

85

Schedule 1 makes provision for the modification of enactments.

Ancillary provision

86

(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.

Repeals

87

The enactments mentioned in schedule 2 are repealed to the extent mentioned in the second column of that schedule.

Commencement

88

(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.

Short title

89

The short title of this Act is the Trusts and Succession (Scotland) Act 2024.

Schedule 1

Titles to Land Consolidation (Scotland) Act 1868

1

In section 24 of the Titles to Land Consolidation (Scotland) Act 1868 (mode of completing title by a judicial factor on a trust estate etc.), for “(Scotland) Act 1921” substitute “and Succession (Scotland) Act 2024”.

Judicial Factors (Scotland) Act 1880

2

In section 4 of the Judicial Factors (Scotland) Act 1880 (sheriff empowered to appoint judicial factors in small estates), in paragraph (1A)(a), for “have the same meaning as in sections 22 to 24 of the Trusts (Scotland) Act 1921” substitute “be construed in accordance with section 81 (3) of the Trusts and Succession (Scotland) Act 2024 (taking any reference in section 81 (3) to a trustee to include a reference to a judicial factor)”.

National Parks and Access to the Countryside Act 1949

3

In section 16(5)(b) of the National Parks and Access to the Countryside Act 1949 (agreements for management of nature reserves in Scotland and Wales)—

(a) for “(Scotland) Act 1921” substitute “and Succession (Scotland) Act 2024”, and

(b) for “section 4 thereof (which relates to the general powers of trustees)” substitute “Chapter 3 of Part 1 of that Act (which relates to the powers and duties of trustees)”.

Historic Buildings and Ancient Monuments Act 1953

4

In section 8(6) of the Historic Buildings and Ancient Monuments Act 1953 (power of Minister to accept endowments of historic buildings), for “(Scotland) Act, 1921” substitute “and Succession (Scotland) Act 2024”.

Town and Country Planning (Scotland) Act 1959

5

In section 54(6) of the Town and Country Planning (Scotland) Act 1959 (interpretation), for “(Scotland) Act, 1921” substitute “and Succession (Scotland) Act 2024”.

Trusts (Scotland) Act 1961

6

(1) The Trusts (Scotland) Act 1961 is amended as follows.

(2) In section 2 (validity of certain transactions by trustees), after subsection (6) insert—

(7) In this section, “judicial factor” means any person holding a judicial appointment as a factor on another person’s estate.

(3) In section 6(1) (interpretation), for “in the Act of 1921” substitute “they had in the Act of 1921 immediately before the repeal, by the Trusts and Succession (Scotland) Act 2024, of the Act of 1921.”.

Trustee Investments Act 1961

7

(1) The Trustee Investments Act 1961 is amended as follows.

(2) In section 3(3)(a)(i) (as it applies by virtue of paragraph 4(3) of schedule 3 of the Charities and Trustee Investment (Scotland) Act 2005), for “(Scotland) Act, 1921” substitute “and Succession (Scotland) Act 2024”.

(3) In section 6(7) (as it applies by virtue of paragraph 4(2) of schedule 3 of the Charities and Trustee Investment (Scotland) Act 2005), omit “Without prejudice to section eight of the Trustee Act, 1925, or section thirty of the Trusts (Scotland) Act 1921 (which relate to valuation, and the proportion of the value to be lent, where a trustee lends on the security of property)”.

(4) In section 17(5) (short title, extent and construction), for “(Scotland) Act, 1921” substitute “and Succession (Scotland) Act 2024”.

Land Compensation (Scotland) Act 1963

8

(1) The Land Compensation (Scotland) Act 1963 is amended as follows.

(2) In section 45(5) (interpretation), for “has the same meaning as in the Trusts (Scotland) Act 1921” substitute “and “trust” have the same meanings as in the Trusts and Succession (Scotland) Act 2024 except that in this subsection “trustee” includes a judicial factor and “trust” includes a judicial factory.”.

(3) In paragraph 7 of schedule 3 (as it applies by virtue of section 77 and paragraph 2 of schedule 16 of the Planning and Compensation Act 1991), for sub-paragraph (4) substitute—

(4) In this paragraph, “trustee” and “trust” have the same meanings as in the Trusts and Succession (Scotland) Act 2024 except that in this paragraph “trustee” includes a judicial factor and “trust” includes a judicial factory.

Countryside (Scotland) Act 1967

9

In section 49A(6) of the Countryside (Scotland) Act 1967 (management agreements in relation to natural heritage)—

(a) for “(Scotland) Act 1921” substitute “and Succession (Scotland) Act 2024”, and

(b) for “section 4 thereof (which relates to the general power of trustees)” substitute “Chapter 3 of Part 1 of that Act (which relates to the powers and duties of trustees)”.

Agriculture Act 1970

10

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