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Trusts

Team Leader
Lord Drummond Young, SLC Consultant

Team members
Charles Garland, Project Manager
Stephen Bailey, Legal Assistant

We are conducting a wide-ranging review of trust law. The current law is based to a large extent on the Trusts (Scotland) Act 1921 and late 19th century cases when the social and business background was different from that of today. An Advisory Group of practitioners and academics has been set up to assist the Commission. In order to make our task more manageable we have divided the work up into a number of topics for consultation.

We have published 8 discussion papers as part of our current review, as well as two consultation papers (2011 and 2012) and a report (2007):

Breach of Trust (DP 123, 2003)

Apportionment of Trust Receipts and Outgoings (DP 124, 2003) 

Trustees and Trust Administration (DP 126, 2004)  (The proposals on the use of nominees and delegation in the investment field were widely supported and were implemented in the Charities and Trustee Investment (Scotland) Act 2005. That Act also implemented the Scottish recommendations about trustees' powers of investment in the earlier joint Report on Trustees' Powers and Duties (Scot Law Com No 172, Law Com No 260, 1999).)  The Commission's Chairman, Lord Drummond Young, delivered a lecture on "Trustees and trust administration: the Scottish Law Commission's proposals for reform" at a TrustBar seminar in 2009.

Variation and Termination of Trusts (DP 129, 2005)  This was followed by our Report on the Variation and Termination of Trusts (Scot Law Com No 206, 2007).

Nature and Constitution of Trusts (DP 133, 2006) 

Liability of Trustees to Third Parties (DP 138, 2008)

Accumulation of Income and Lifetime of Private Trusts (DP 142, 2010)

Supplementary and Miscellaneous Issues relating to Trust Law (DP 148, 2011)  This paper seeks to gather further views on a small number of topics on which we have already consulted, as well as asking for comments on a few new and general issues.  One of those issues is the question of whether decisions by trustees or other fiduciaries should be capable of being reduced by the court in certain circumstances.  In the light of consultees' responses we have decided to seek views on specific proposals and these are set out in our Consultation Paper on Defects in the Exercise of Fiduciary Powers (Dec 2011). 

Consultation Paper on Public and Charitable Trusts: Amalgamation of Functions and Common Investment Funds.  This paper, published in July 2012, contains two broad sets of proposals.  The first set is designed to facilitate efficiencies for public trusts, including charitable ones, through the sharing of certain administrative functions.  The second set of proposals seeks to allow two types of charitable investment fund, which are currently available elsewhere in the UK, to be set up under Scots law.  These funds offer considerable advantages for all charities, whether in the form of a trust or not.   

We are working on a report covering the majority of the topics on which we have consulted. This will contain a draft Trusts (Scotland) Bill to replace the existing legislation.  We aim to publish it by the summer of 2014.

For more information, please contact: charles.garland@scotlawcom.gsi.gov.uk.