Glossary of Terms Used in the Notes
3.In these Notes, the following terms are intended to be read by reference to the descriptions of those terms set out below.
| Agent | A person to whom trustees delegate administrative tasks required to carry out the purposes of the trust, (but not normally acts that require the exercise of the trustee’s discretion or judgment unless expressly provided for by the trust deed). |
| Assumption of trustee | Where existing trustees add a new trustee to their number. |
| Declarator | An order declaring that some right exists or does not exist which has legal consequence. |
| Delict | A civil wrong which inflicts loss or harm. |
| Executor dative | A person appointed by the court to administer the estate of a deceased person, normally when the person dies intestate. |
| Ex officio trustee | Where the truster has provided for the holder of a certain office to be a trustee, the holder of that particular office (as may change from time to time) who acts as trustee during the period in which they hold office. |
| Fee | See “Liferent” |
| Fiar | See “Liferent” |
| Fiduciary duty | A duty in Scots law under which a party (the fiduciary) is bound to prefer the interests of another (the beneficiary) over their own interests. This is in contrast to normal transactions, in which each party considers their own interests. |
| General conveyance | A general conveyance is one in which there is no particular specification of the property in question, the intention being that it will cover all trust property which requires a conveyance. |
| Interdict | A judicial prohibition or court order preventing someone from doing something. |
| Intestate | Where a deceased person dies without leaving a will or other testamentary disposition. |
| Inter vivos trust | A trust set up by a living truster, with the intention that it takes effect during their lifetime. |
| Judicial Factor | An officer of court, who is appointed by the court, where a particular problem has been identified and where the estate (known as the Judicial Factory estate) is without any other legal protection or administration. Their role is to preserve and protect the estate and where appropriate, realise and distribute the estate amongst those entitled to it. A Judicial Factor is independent to the case, and is normally a professionally qualified individual, such as a solicitor or accountant. |
| Liferent | Strictly, the right to use somebody else’s property for life. A subordinate real right, encumbering the other party’s ownership. The relationship exists only between the owner of the property (sometimes called the “fiar”) and the person enjoying the liferent (“the liferenter”). This arrangement is sometimes called a “proper liferent”. |
| In the context of trusts, there is something slightly different, variously referred to as an “ | |
| A truster may transfer ownership of the property to the trustee, who will hold and administer the property on behalf of the beneficiaries. One beneficiary might be entitled to use the property as if they hold a liferent in relation to it (“the beneficial liferenter”). Upon the death of the beneficial liferenter, ownership of the property (sometimes referred to as “ | |
| For example, a parent may leave a property in trust liferent to their civil partner but in fee to their child. The spouse may live in and enjoy the property for the duration of their life, but they will not own it. Upon the death of the spouse, ownership of the property will pass to the child. | |
| For the purposes of these Notes, reference to a liferent means a trust liferent, and references to “liferenters” and “fiars” are to beneficial liferenters and beneficial fiars respectively. | |
| Liferenter | See “Liferent” |
| Nominee | A person appointed by trustees to hold and use trust property on behalf of the trustees, often for investment purposes. |
| Onerous contract | A contract is onerous when the obligations of performance exist on both sides of the agreement. (A gratuitous contract is one where the obligations of performance exist on only one side.) |
| Patrimony | The totality of a person’s assets and liabilities. |
| Probative document | A document that is presumed to be validly executed, normally when the signature on the document bears to have been witnessed. |
| Professional trustee | Someone who represents themselves as having greater expertise in trust matters than untrained lay-persons, and who acts as trustee in the course of business. |
| Rectification | A court order that enables a document which does not accurately reflect the common intention of the parties to be altered retrospectively. |
| Reversionary property | Where an interest in trust property reverts to the truster when the prior interest of the beneficiary comes to an end. For example, if Janet transfers a house she owns into trust for use by her mother for life (see “liferent”), with ownership to revert to Janet on her mother’s death. Janet has a reversionary interest in the house. |
| Special destination | Also sometimes known as survivorship destinations. Conditions that commonly appear in the title of property held by more than one person, usually spouses, which provide that on the death of one of the joint owners their interest in the property automatically passes to the survivor. |
| Testate | Where a deceased person dies leaving a will or other testamentary disposition. |
| Trust assets | The property held in trust, including both income and capital. |
| Trust capital | Assets put into a trust when it commences, such as property, investments and cash. |
| Trust income | Regular returns arising from trust capital. For example, rent received in respect of heritable property, dividends paid on shares or bank interest on cash deposits. |
| Vest | A person is vested in property when it becomes that person’s property by legal right or authority. |
