Trusts and Succession (Scotland) Act 2024

Investment

18 Power of investment

(1) The trustees have the power to make any kind of investment of trust property, including an investment in heritable property, except in so far as—

(a) the trust deed, expressly or by implication, provides otherwise, or

(b) in a case where there is no trust deed, the context requires or implies otherwise.

(2) The power to act under subsection (1)—

(a) is subject to any restriction or exclusion imposed by or under any enactment, and

(b) is not conferred on trustees—

(i) of an authorised unit trust, or

(ii) under any other trust who are entitled by or under another enactment to make investments of trust property.

(3) A term—

(a) relating to the powers of a trustee and contained in a trust deed executed before 3rd August 1961, or

(b) restricting the powers of investment of a trustee to those conferred by the Trustee Investments Act 1961 and contained in a trust deed executed on or after that date,

is not to be treated as restricting or excluding the power to act under subsection (1).

(4) The reference, in paragraph (b) of subsection (3), to a trustee does not include a reference to a trustee under a trust constituted by a private or local Act of Parliament or a private Act of the Scottish Parliament; and in that paragraph “trust deed” is to be construed accordingly.

(5) In this section, “authorised unit trust” means a unit trust scheme in the case of which an order under section 243 of the Financial Services and Markets Act 2000 is in force.

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

19 Exercise of power of investment

(1) Before acting under section 18(1) the trustees—

(a) are to have regard to—

(i) the suitability to the trust of the proposed investment, and

(ii) the need for diversification of investments of the trust in so far as is appropriate to the circumstances of the trust, and

(b) are (except where subsection (3) applies) to obtain and consider proper advice about the way in which the power in question should be exercised.

(2) When reviewing the investments of the trust, the trustees are (except where subsection (3) applies) to obtain and consider proper advice about whether the investments should be varied.

(3) If the trustees reasonably conclude that in all the circumstances it is unnecessary or inappropriate to obtain such advice, they need not obtain it.

(4) In this section, “proper advice” means the advice of a person who is reasonably believed by the trustees, on the basis of the person’s—

(a) ability, and

(b) practical experience of financial and other matters relating to the proposed investment,

to be qualified to give it.

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

20 Exercise of power of investment: further provision

(1) For the purposes of section 19(1) and (2), where two or more proposed investments are suitable for the trust, the trustees may (except in so far as the trust deed, expressly or by implication provides otherwise) take into account appropriate non-financial considerations in determining which investment to make.

(2) An appropriate non-financial consideration may be (either or both)—

(a) a consideration that one investment is more consistent with the purposes of the trust than the other investment,

(b) an ethical, social or environmental consideration.

(3) This section—

(a) does not apply as respects a trust created before the section comes into force, and

(b) is without prejudice to any other power of trustees to take into account non-financial considerations in relation to determining investments.