Skip to main content
Loading…

Seòmar agus comataidhean

Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

Criathragan Hide all filters

Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 10 August 2025
Select which types of business to include


Select level of detail in results

Displaying 914 contributions

|

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Bill Kidd

Thank you. Sorry for throwing that at you, Laura.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Bill Kidd

Thank you.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Bill Kidd

That makes sense.

I note that a trust deed can, in fact, override section 26, but a court can then later review the reasonableness of that override. I suppose that it would tend to look into whether people are behaving unreasonably towards the beneficiary.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Bill Kidd

That makes sense. I think that that answer covered just about everything.

Section 49(3)(a) is about domicile. Professor Paisley from the University of Aberdeen has a few issues with it and told us that it would be harder to get information about who controls land and property if the trust were later to be treated as being resident overseas.

In its written submission to the committee, the Law Society of Scotland did not comment on the policy that underpins section 49. However, it did say that it thinks that the drafting of the domicile subsection is unclear in terms of its scope. The Law Society also said that the scope of the separate power of the protector to “determine” the trust’s “administrative centre” is unclear.

Do you agree with the academics’ interpretation of section 49 and do you have views on whether protectors should have the power to look at overseas domicile for trusts in order to challenge issues?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Bill Kidd

Good morning, everyone. I will ask about sections 25 and 26.

Section 25 requires trustees to tell a beneficiary that they are a beneficiary and to give them all the trustees’ names and correspondence details. That is mandatory for certain types of beneficiary. For potential beneficiaries, trustees have some discretion in what information is provided under section 25.

Section 26 is about what information must be made available to beneficiaries and potential beneficiaries, but a trust deed can override that section, although a court can later review the reasonableness of that override.

There is quite a bit of to-ing and fro-ing there, to make a point on what I have said. Various respondents to the committee’s call for views have said that the trustees’ duty to provide information to beneficiaries and potential beneficiaries under sections 25 and 26 is too onerous—they have to take into account too many elements. Do you have concerns about that? If you do, how would you amend the sections to address them?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Bill Kidd

Thank you very much for that. Ken Swinton, do you want to say anything?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Bill Kidd

That is perfectly understandable.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Bill Kidd

There is a range of disagreement and agreement. The issue is wide ranging and is one of policy, rather than being one for the lawyers to sort out. The lawyers can argue about it later, but we will argue about it first.

I have one last thing to talk about, which is the domicile of the trust and where it is based. The academic panel of Professor Paisley, Professor Gretton and Yvonne Evans were all pretty much agreed that a protector should not be able to move the permanent residence of a trust outside Scotland. On that basis, and in relation to section 49 of the bill, were the academics correct when they said that permitting the protector of a trust to move the domicile of a trust outside Scotland was undesirable in policy terms? What are your views on whether protectors should be allowed to do that?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Bill Kidd

That makes sense.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Bill Kidd

I understand exactly what you are talking about and can see how what you have said provides a bit of clarity on sections 25 and 26. However, is not there a wee issue for beneficiaries and potential beneficiaries in terms of trustees having too much power? Trustees might decide to go forward in a way that means that the beneficiary does not get as much from the trust as they otherwise might have had.