Trusts and Succession (Scotland) Act 2024

6 Resignation of incapable trustee

(1) Where a trustee is incapable, the power in section 5(1) may be exercised by the trustee’s guardian (“G”) on behalf of the trustee (and in such a case, the resignation will, for the purposes of this Act, be treated as a resignation by the trustee).

(2) But where subsection (3) applies, G may do so only after—

(a) an additional trustee is assumed under section 3,

(b) an additional trustee is appointed—

(i) under section 1 or 2, or

(ii) by G, or

(c) a judicial factor is appointed to administer the trust.

(3) This subsection applies where—

(a) the incapable trustee is a sole trustee, or

(b) in G’s opinion, no other trustee exists who is both capable and traceable.

(4) Any resignation given by G on behalf of the incapable trustee in breach of subsection (2) is of no effect.

(5) Section 4(2) (general conveyance of trust property) applies to an appointment of a trustee by G under subsection (2)(b)(ii) as it applies to an appointment of a trustee under section 1(1)(b) or 2(1).

(6) Section 5(5) applies to a resignation given by G on behalf of an incapable trustee in accordance with this section as it applies to a resignation given by a trustee under section 5.

(7) This section applies—

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

(b) only as respects a resignation given after this section comes into force.