University of Dundee
6 Contributions by University of Dundee Experts
PRACTICE NOTES
FORTHCOMING CHANGE :
The Trusts and Succession (Scotland) Act 2024 obtained Royal Assent on 30 January 2024, signalling the first major overhaul of Scottish trusts law in more than a century since the Trusts (Scotland) Act 1921. Most trust provisions will commence only when Scottish Ministers implement the required secondary legislation. By contrast, certain succession measures and aspects concerning the removal of trustees are already in operation. A summary of the key modernising reforms is set out in News Analysis: Trusts and Succession (Scotland) Bill passed. Practice Notes dealing with Scottish trusts and succession will be revised to reflect the new regime in due course.
General nature of beneficiaries’ rights
Under Scots law, beneficiaries are generally regarded as holding personal rights against the trustees, although in some situations their rights resemble a real right in property. Notably, the beneficiaries’ interest outranks the claims of a
Private Client
PRACTICE NOTES
FORTHCOMING CHANGE :
The Trusts and Succession (Scotland) Act 2024 gained Royal Assent on 30 January 2024, representing the first overhaul of Scottish trusts law in more than a century since the Trusts (Scotland) Act 1921. Certain provisions on succession began on 30 April 2024, while others have yet to commence. The principal updates to modernise the regime are set out in News Analysis: Trusts and Succession (Scotland) Bill passed. Practice Notes dealing with Scottish trusts and succession will be further revised to reflect this new legislation. This Practice Note considers section 29 of the Family Law (Scotland) Act 2006 (FL(S)A 2006), concerning the right of a surviving cohabitant to ask the court for an order for payment from an intestate estate in Scotland. The court retains discretion as to whether to make an award when asked. These provisions cover couples of the same or
Private Client
PRACTICE NOTES
FORTHCOMING CHANGE :
The Trusts and Succession (Scotland) Act 2024 obtained Royal Assent on 30 January 2024, representing the first overhaul of Scots trusts law in more than a century since the key statute, the Trusts (Scotland) Act 1921, was enacted. Provisions on trusts will only commence following secondary legislation by Scottish Ministers, while the succession measures took effect on 30 April 2024. A summary of the principal modernising reforms appears in News Analysis: Trusts and Succession (Scotland) Bill passed.
Express creation of trusts
An express trust arises where the owner of assets (the truster) conveys property to trustees to hold for specified purposes for the benefit of the beneficiaries. The trust’s constitution is finalised by delivery of the trust property or the trust deed to the trustee.
Trust deed
‘Trust deed’ is defined in the Trusts (Scotland) Act 1921 (T(S)A 1921) as referring to:
any deed or other
Private Client
PRACTICE NOTES
FORTHCOMING CHANGE :
The Trusts and Succession (Scotland) Act 2024 received Royal Assent on 30 January 2024, signalling the first significant overhaul of Scottish trust law in more than a century since the Trusts (Scotland) Act 1921. The trust provisions still require secondary legislation from the Scottish Ministers before full commencement, whereas the succession elements took effect on 30 April 2024. The headline reforms aimed at modernisation are outlined in News Analysis: Trusts and Succession (Scotland) Bill passed. Practice Notes addressing Scottish trusts and succession will be updated further to reflect this new legislation...
Civilian origin of Scots trust law and fideicommissum
Scottish trust law differs from the English law of trusts in several notable respects, though Scots law has absorbed certain English concepts and terminology. A concise overview of the historical foundations of the Scots law of trust may aid
Private Client
PRACTICE NOTES
FORTHCOMING CHANGE
The Trusts and Succession (Scotland) Act 2024 obtained Royal Assent on 30 January 2024, representing the first comprehensive reconsideration of Scottish trust law in more than a century, since the principal Trusts (Scotland) Act 1921 was enacted. The trusts elements will only operate once Scottish Ministers make the necessary secondary legislation to commence them, whereas the provisions on succession took effect on 30 April 2024. A synopsis of the principal reforms designed to modernise the law appears in News Analysis: Trusts and Succession (Scotland) Bill passed.
Definitions
Arriving at a fully adequate definition of a ‘trust’ is challenging, given the breadth of contexts in which trusts arise, and a trust itself has no separate legal personality. For practical purposes, a ‘trust’ can be viewed as a legal arrangement whereby legal title to property passes from the truster to one or more trustees (the
Private Client
PRACTICE NOTES
FORTHCOMING CHANGE :
The Trusts and Succession (Scotland) Act 2024 obtained Royal Assent on 30 January 2024, representing the first comprehensive re-examination of Scottish trust law in more than a century, since the cornerstone Trusts (Scotland) Act 1921 was enacted. As regards trusts, a substantial proportion of its provisions will only operate once Scottish Ministers make further secondary legislation to commence them. By contrast, most succession provisions took effect on 30 April 2024, with a handful of minor trust-related points commencing on 26 June 2024. See News Analysis: Trusts and Succession (Scotland) Bill passed. Practice Notes dealing with Scottish trusts and succession will be updated further to reflect, and align with, this new legislation. At common law, once a trust has taken effect, the scope to vary its terms or purposes is very narrowly confined. Where an inter vivos trust is
Private Client
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