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Displaying 1106 contributions
Delegated Powers and Law Reform Committee
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
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
Meeting date: 16 May 2023
Bill Kidd
Thank you. Sorry for throwing that at you, Laura.
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
Following on the back of that, I will ask about the position on section 61—the alteration of trust purposes—when it comes to family trusts. Section 61 gives a power to the beneficiaries and others to apply to the court to alter the trust purposes of a family trust, and sets out the default position that the power cannot be used for 25 years.
You might have heard the previous panel speak somewhat about that. Given that the views on the 25-year restriction have been mixed, as I said, and that it is a default power only, are you satisfied that retaining the 25-year restriction in the bill is the right policy decision?
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
That makes sense.
Delegated Powers and Law Reform Committee
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.
Delegated Powers and Law Reform Committee
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
Meeting date: 16 May 2023
Bill Kidd
That is perfectly understandable.
Delegated Powers and Law Reform Committee
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
Meeting date: 16 May 2023
Bill Kidd
That is an interesting angle as well.