Trusts and Succession (Scotland) Act 2024

31 Trustees’ duty of care etc.

(1) Subject to subsections (2) and (3), a trustee, in managing the affairs of the trust, is required to exercise such care and diligence as any person of ordinary prudence would exercise in managing the affairs of another person.

(2) A person who in the course of business provides professional services in relation to managing the affairs of trusts is required, where appointed or assumed as a trustee and remunerated for carrying out the duties of that office, to exercise such skill, care and diligence as it is reasonable to expect from a member of the profession in question.

(3) A natural person with professional qualifications who is appointed or assumed as a trustee but is not a person mentioned in subsection (2) is—

(a) if expressly instructed by or on behalf of the trustees to provide professional services or advice to the trust, required (whether remunerated or not) to exercise such skill, care and diligence in providing those services or that advice as it is reasonable to expect from a member of the profession in question, and

(b) if not so instructed, required only to exercise such care and diligence as is mentioned in subsection (1).

(4) A provision of a trust deed is of no effect in so far as the provision purports—

(a) to lessen a requirement imposed by subsections (1) to (3),

(b) to relieve a trustee from liability arising from a failure to exercise the skill, care or diligence required of that trustee by subsection (2) or (3)(a),

(c) in the case of a trustee who is required only to exercise such care and diligence as is mentioned in subsection (1), to relieve the trustee from liability arising by virtue of the trustee’s gross negligence,

(d) to exclude or restrict any right or remedy in relation to a liability arising as mentioned in paragraph (b) or (c),

(e) to indemnify a trustee for any liability arising as mentioned in either of those paragraphs,

(f) to subject a person to any prejudice in respect of pursuing such a right or remedy,

(g) to exclude or restrict any rule of evidence or procedure in its application to the pursuit of such a right or remedy, or

(h) to make a liability arising as mentioned in paragraph (b) or (c), or its enforcement, subject to restrictive or onerous conditions.

(5) This section applies—

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

(b) only as respects managing the affairs of the trust after the section comes into force.