145.Section 79 of the Act amends the Requirements of Writing (Scotland) Act 1995 (“
146.Section 80 inserts a new section 6A into the Confirmation of Executors (Scotland) Act 1858. The inserted section requires a sheriff to refuse a petition for the appointment of a person as executor dative where the sheriff is satisfied that the person has been convicted of, or is being prosecuted for, the murder or culpable homicide of the deceased, or an equivalent offence in a different jurisdiction. Where a person is appointed as executor dative despite such a conviction or prosecution (for example, because relevant facts were not brought to the court’s attention), subsection (5) provides that the appointment is not invalid, but that there is no obstacle to the subsequent removal of the person from office by a court on an application under section 7, read with section 8, of the Act. Subsection (6) provides that the inserted section does not affect any power a sheriff may have to refuse a petition for appointment of an executor dative by reason of any other involvement or suspected involvement in the deceased’s death.
147.Section 81 of the Act is the interpretation provision. Subsection (1) defines a number of terms used in the Act, or refers to particular sections which are relevant for that purpose. Note in particular the following terms.
“Beneficiary” and “potential beneficiary”: the former definition is taken from section 1(6) of the Trusts (Scotland) Act 1961 and the latter is based upon section 1(1)(b) of that Act. An example of potential beneficiaries is the class of the heirs of an individual who has not yet died. The heirs cannot be ascertained until that individual dies, with the result that they have no present interest but are merely potential beneficiaries.
The definition of “the court” explains whether, in relation to individual sections of the Act, the court means just the Court of Session or whether it also includes the sheriff court. Subsection (3) provides further detail about which sheriff court has jurisdiction (but see also section 82).
The definition of “
The definition of “trustee” expressly includes all executors, both nominate (in testate cases) and, except in section 3 (power for trustee to assume an additional trustee) and in section 5 (power of trustee to resign office), dative (in intestate cases).
The definition of “appropriate person”. Paragraph (a) of this definition covers the range of circumstances where a parent, guardian or person with parental responsibilities is to be considered an appropriate person for a beneficiary or potential beneficiary who is under 16. Paragraph (b) covers the circumstances where a guardian is the appropriate person for someone who is incapable for a reason other than non-age (and should be read with the definition of “guardian”).
148.Section 82 confers on the Scottish Ministers, by regulations, power to vary the definition of “court” in section 81 of the Act. This allows Ministers, with the consent of the Lord President of the Court of Session, to change the court that can hear different types of trust application, being either the appropriate sheriff court or the Court of Session. The regulations are subject to the affirmative procedure.
149.Section 83(1)(a)(21) of the Act, provides that “
““
acting; or
making decisions; or
communicating decisions; or
understanding decisions; or
retaining the memory of decisions,
as mentioned in any provision of this Act, by reason of mental disorder or of inability to communicate because of physical disability; but a person shall not fall within this definition by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise);”
150.Subsection (1)(b) confirms that a person has capacity where the person is not incapable or otherwise lacks legal capacity (such as where the person is too young).
151.Subsection (2) provides the Scottish Ministers with a power to make regulations to modify the effect of the definition of incapable in the 2000 Act as it applies to the Act or to modify or replace the definition of incapable in the Act. This power therefore allows Ministers to keep the definition of incapable aligned should the definition in the 2000 Act change (or be replaced) or should the application of the definition need modified further than is already the case in section 83(1).
152.Section 84 of the Act, which implements recommendation 12, defines what is meant by references in specific sections of the Act to a person who is untraceable. Paragraph (a) sets out the general condition that the person must not have been traced. Paragraph (b) sets out how each of the sections of the Act which refer to a person who is untraceable are also subject to an additional condition. For instance, for sections 1(1)(b), 7(1)(e), 49(5)(b), 55(3)(g)(v), 59(5)(e), 70(3)(e)(i) or 70(3)(f)(i), the court must be satisfied that reasonable steps must have been taken to trace the person. What counts as reasonable, and who must be satisfied as to the reasonableness of those steps, will vary according to the circumstances of the trust and the particular provision of the Act which is in question, thus allowing appropriate flexibility for individual cases.
153.Section 85 of the Act introduces schedule 1, which makes provision for the modification of enactments. Note in particular the following modifications.
Paragraph 1 amends the existing reference to the 1921 Act so that it refers instead to the short title of this Act that will result from this Act. Similar changes are made in paragraphs 3(a), 4, 5, 7(2) and (4), 9(a), 10(a), 11, 13(a), 14(2), 16, 19(a), 21(b)(i).
Paragraph 3(b) amends section 16(5)(b) of the National Parks and Access to the Countryside Act 1949 which refers to trustees’ powers under section 4 of the 1921 Act. Those powers are deemed to include the power to enter into agreements of the type described in section 16 of the 1949 Act. Because the approach to trustees’ powers in the Act differs from that of the 1921 Act – in essence by granting trustees a general power (in section 15) rather than a list of specific powers – section 16(5)(b) of the 1949 Act is amended to refer not to a single provision of the Act but to Chapter 3 of Part 1 generally, which deals with powers and duties of trustees. Similar changes are made in paragraphs 9(b), 10(b), 12, 13(b), 19(b), 21(a) of Schedule 1.
The effect of paragraph 7(3) is to omit the opening words of section 6 of the Trustee Investments Act 1961. This removes the need to take into account the provisions of section 30 of the 1921 Act, which protects trustees from a charge of breach of trust where they lend money and take a security on property. As there is no direct equivalent in the Act to section 30, the Act repeals the reference to section 30 without replacement.
Paragraph 17 modifies the Age of Legal Capacity (Scotland) Act 1991, to give further effect to recommendation 82. It inserts provisions which state that those under the age of 18 continue to lack capacity to agree to a variation or termination of the trust of which they are beneficiaries.
Paragraph 18 implements recommendation 81. It amends section 10 of the Children (Scotland) Act 1995 to make clear that a parent or guardian does not have power to approve a variation or termination of a trust on behalf of a child.
Paragraph 22 makes a change to section 34(6) of the Charities and Trustee Investment (Scotland) Act 2005. This provision states that where, on an application by the Office of the Scottish Charity Regulator (OSCR), the Court of Session appoints a trustee to a charitable trust, the trustee will be treated as if having been appointed under section 22 of the 1921 Act. The reference to section 22 is replaced by a reference to section 1(1)(b) of the Act, thus preserving the effect of section 34 of the 2005 Act.
154.Section 86 of the Act sets out that the Scottish Ministers may, by regulations, make ancillary provision for the purposes of, or in connection with or for giving full effect to the Act.
155.Section 87 introduces schedule 2, which repeals certain enactments to the extent mentioned in the second column of that schedule. The repeals of the Powers of Appointment Act 1874, the 1921 Act and sections 1, 2(1) and (2) and 6(1) of the Trusts (Scotland) Act 1961 follow from the main provisions of the Act which replace these existing statutory provisions (see, in particular, the 1921 Act, which is to be repealed in its entirety). The remaining entries are consequential on the repeal of the 1921 Act and the specified provisions of the 1961 Act.
156.Section 88 sets out when the provisions of the Act will come into force (i.e. have legal effect). Most provisions will be brought into force by regulations as determined by the Scottish Ministers. These regulations will be laid before the Scottish Parliament but will not otherwise be subject to any parliamentary procedure. However, this section, section 86 (ancillary provision) and section 89 (the short title) come into force on the day after Royal Assent, and sections 76 and 78 in Part 2 (succession) come into force at the end of the period of 3 months beginning with the day of Royal Assent.
157.Section 89 provides for the short title (i.e. the Trusts and Succession (Scotland) Act 2024), which is the name by which the Act may be cited in formal proceedings.
The intention in line with the Report on Trusts in repealing the 1921 Act is to extend the effect of the new Act to pension schemes established under a trust by order under section 104 of the Scotland Act 1998 with any necessary modifications.
This departs from recommendation 11 of the Report on Trusts which set out a similar (but slightly different) definition in the Bill as introduced.