Trusts
Team Leader
Lord Pentland, Chairman
Lord Drummond Young, SLC Consultant
Team members
Charles Garland, Project Manager
Lauren Smith, Legal Assistant
Project work
We conducted a wide-ranging review of trust law, culminating in the publication of a Report on Trust Law (SLC No 239) in August 2014. As mentioned below, we published a revised version of the Bill in December 2018. The Scottish Government gave their initial response in June 2015 to the report.
In the course of our review, we published 8 discussion papers, as well as two consultation papers (2011 and 2012) and a report (2007):
Breach of Trust (DP 123, 2003)
Apportionment of Trust Receipts and Outgoings (DP 124, 2003)
Trustees and Trust Administration (DP 126, 2004) (The proposals on the use of nominees and delegation in the investment field were widely supported and were implemented in the Charities and Trustee Investment (Scotland) Act 2005. That Act also implemented the Scottish recommendations about trustees' powers of investment in the earlier joint Report on Trustees' Powers and Duties (Scot Law Com No 172, Law Com No 260, 1999).) The Commission's then Chairman, Lord Drummond Young, delivered a lecture on "Trustees and trust administration: the Scottish Law Commission's proposals for reform" at a TrustBar seminar in 2009.
Variation and Termination of Trusts (DP 129, 2005) This was followed by our Report on the Variation and Termination of Trusts (Scot Law Com No 206, 2007).
Nature and Constitution of Trusts (DP 133, 2006)
Liability of Trustees to Third Parties (DP 138, 2008)
Accumulation of Income and Lifetime of Private Trusts (DP 142, 2010)
Supplementary and Miscellaneous Issues relating to Trust Law (DP 148, 2011) This paper seeks to gather further views on a small number of topics on which we have already consulted, as well as asking for comments on a few new and general issues. One of those issues is the question of whether decisions by trustees or other fiduciaries should be capable of being reduced by the court in certain circumstances. In the light of consultees' responses we have decided to seek views on specific proposals and these are set out in our Consultation Paper on Defects in the Exercise of Fiduciary Powers (Dec 2011).
Consultation Paper on Public and Charitable Trusts: Amalgamation of Functions and Common Investment Funds. This paper, published in July 2012, contains two broad sets of proposals. The first set is designed to facilitate efficiencies for public trusts, including charitable ones, through the sharing of certain administrative functions. The second set of proposals seeks to allow two types of charitable investment fund, which are currently available elsewhere in the UK, to be set up under Scots law. These funds offer considerable advantages for all charities, whether in the form of a trust or not.
The current law is based to a large extent on the Trusts (Scotland) Act 1921 and late 19th century cases when the social and business background was different from that of today. With the assistance of an Advisory Group of practitioners and academics, we have made over 100 recommendations for modernisation and reform of the law, drawing not only on domestic law but also that of other jurisdictions round the world. Our Report contains a draft Trusts (Scotland) Bill which, on enactment, would give effect to those recommendations.
Further work after publication our Report on Trust Law
This substantially completes our review of trust law. However, at the time of publication in 2014 we indicated that we would continue to work on a technical matter, which is to identify consequential amendments which would be required if our draft Bill were to be enacted. In December 2018 we published a revised version of the Bill, with an Explanatory Note. The revised version is here and the Explanatory Note is here. For those wishing to see where changes have been made, a version with changes shown in italics and bold type is here. There is also a news release here. See the Scottish Government response here.
Implementation - preliminary
We received a letter from the Scottish Government on 27 October 2021 regarding implementation, and the Chair responded on 28 October 2021.
Implementation - Scottish Parliament
On 23 November 2022 the Trusts and Succession (Scotland) Bill was introduced into the Scottish Parliament. The lead Minister wrote to the Chair on 23 November 2022 with the Scottish Government's reasons why the Bill was suitable to be allocated to the Delegated Powers and Law Reform Committee (DPLRC), and explaining why pensions trusts would be provided for by Westminster rather than Holyrood. Lady Paton responded on 29 November 2022. The Trusts and Succession (Scotland) Act 2024 received Royal Assent on 30 January 2024.
Commencement
See here for correspondence dated 30 May 2024 from the Minister to the Convener of the DPLRC.
For more information, please contact: info@scotlawcom.gov.uk.