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Official Report: search what was said in Parliament

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

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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 4 May 2021
  6. Current session: 13 May 2021 to 7 February 2026
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Displaying 529 contributions

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Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Oliver Mundell

I am interested in the point that Michael Paparakis made about there being relatively few cases at the moment. Clearly, the bill envisages a greater role for courts in the administration of trusts. There will be several new opportunities to involve the court in trust matters. Does that give a greater reason to expand the options for people?

On the point about some of the evidence that we have heard about court costs, there is certainly a public perception—including on the part of many people involved with trusts—that the sheriff court could be a more expensive route. If the bill goes ahead, what do you plan to do to publicise information on the likely costs of going to the sheriff court?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Oliver Mundell

Briefly, convener. I had planned to ask about the codification of trust law later, but would you rather that I asked about that now?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Oliver Mundell

In the same evidence session, we also heard concerns that people might try to draft around the provision or include clauses to create the flexibility to make changes outwith that period. Multiple witnesses at that session seemed to agree that that would not be desirable. Do you take that point on board?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Oliver Mundell

Thank you.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Oliver Mundell

Coming back to the points that your officials have made, minister, do you think that this has been a missed opportunity? Some people have been in touch with the committee to say that there could have been a wholesale codification of trust law. Given that we have not had major legislation in this area for a long time and that the bill has come to the Parliament through the SLC process, I imagine that it is unlikely that the Parliament will legislate on trusts on this scale for years. Have we missed the opportunity to do that codification exercise?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Oliver Mundell

That would be helpful. It feeds into a wider issue—one which will potentially be referenced in other questions—about how people navigate the legislation, bearing in mind that a lot of the individuals who interact with it are not going to be legal professionals. Many people put themselves forward for smaller charitable trusts to try and do something good for society, and having clear advice and guidance for them on how legislation affects them would be useful.

You say that you do not expect an increase in litigation. However, the bill creates a lot of new opportunities for the courts to get involved in trusts, so it is hard to see how there would not be an increase in cases. What is your analysis based on?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Oliver Mundell

I will leave it for now, convener.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 23 May 2023

Oliver Mundell

Touching on that point, but more broadly, on 9 May we heard from legal academics including Professor Gretton and Yvonne Evans, who said that, in practice, a solicitor would just “draft around” a 25-year provision. This question may be for Chris Sheldon and Mike Blair: are we worrying too much about it? Would most trusts be drafted to give some leeway in relation to purpose?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 23 May 2023

Oliver Mundell

I am interested in sections 25 and 26. Concern has been expressed to the committee that trustees’ duties to provide information to beneficiaries and potential beneficiaries under those sections are too onerous and that the extent of the duties is uncertain. Do you want to share your views on the provisions, particularly if you have concerns? I am interested in how you would change the sections to address those concerns.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 23 May 2023

Oliver Mundell

I want to move on to section 61 of the bill, which gives power to the beneficiaries and others to apply to the court to alter the purposes of a family trust where there is a material change of circumstances. The section sets out the default position that that power cannot be used for 25 years. Is having such a 25-year restriction the correct approach? We would be interested to hear your views on that and your reasoning.