Hansard

I thank the members of the Delegated Powers and Law Reform Committee for their thoughtful and helpful consideration of the Trusts and Succession (Scotland) Bill. I very much welcome their thorough scrutiny of the bill. I also thank the committee clerks for all their hard work and the stakeholders who contributed views and their time as part of parliamentary scrutiny.

This is a Scottish Law Commission bill, so I thank the commission for the considerable work that went into this law reform project. In particular, I thank Lord Drummond Young, who, even though he is no longer chair of the commission, has given his time generously. I know that he is in the public gallery, along with Lady Paton and Charles Garland from the commission.

The Scottish Government has had useful engagement with a number of stakeholders. My officials have met the Law Society of Scotland on several occasions, and they have met the Society of Trust and Estate Practitioners Scotland and the Office of the Scottish Charity Regulator. Those organisations’ practical experience has been especially important in helping me to reach policy decisions on the content of the bill.

Throughout the process, I have listened carefully to the views that have been expressed to the Scottish Parliament and to the committee’s views, and the bill has been amended as a result. I was happy to lodge stage 2 amendments to implement some of the committee’s thoughtful recommendations, particularly on increasing the safeguards for sole trustees, which was a particular concern that the committee raised after hearing evidence directly from trustees. I have also been pleased to support stage 2 amendments that committee members lodged, and I had helpful engagement with Jeremy Balfour on, for example, his amendment that extended—indeed, doubled—the time during which a cohabitant has the right to make a claim on the deceased cohabitant’s estate when there is no will. Today, we have agreed adjustments to other provisions to ensure that they work as intended.

The bill addresses important issues when someone has died without leaving a will, which is, unfortunately, a relatively common occurrence.

I will briefly remind the chamber of some of the bill’s key provisions and what they are intended to achieve. Most of the bill’s provisions relate to the law of trusts and can be found in part 1. The bill makes important changes to trustees’ powers. The current legislation, which dates back to 1921, no longer gives trustees the powers that they need to administer a trust effectively. That makes it difficult for trustees to comply with their paramount duty, which is to give effect to the trust’s purposes in the best interests of the beneficiaries.

An important reform is the conferral of a default general power, which replaces what is an inflexible, complex and restrictive statutory list of powers. As a result, trustees will be able to have all the powers that a competent adult has in relation to their own property.

The bill reforms the duties that are placed on trustees. Those changes better reflect the need for transparency in modern-day trusts. For example, the bill clarifies what information a beneficiary is entitled to expect or request from the trustees. The trustees’ information duties go to the heart of trust law, and the reforms enable beneficiaries to exercise their power to hold trustees to account.

The bill also makes a number of important changes to how trusts are administered, how trustees are appointed or removed and how trustees resign. Many members in the chamber may be aware—perhaps through their constituents—of the fallout from the failure of McClure Solicitors. I am pleased that, collectively, we have been able to make amendments at stages 2 and 3 to respond to the significant practical difficulties that co-trustees may have in removing a trustee who was appointed as a trustee in their professional capacity and is no longer a member of their profession.

The bill cannot resolve the wider issues that the collapse of McClure’s has caused. I know that Stuart McMillan has a keen interest in the matter, and we recently met to discuss what could be done to help those who have found themselves caught up in the situation. I welcome the engagement with him, and I look forward to working constructively with him on it.

Part 2 deals with reforms to the law of intestate succession. The bill implements a Scottish Law Commission recommendation of 2009 so that, when a person dies without a will and is survived by a spouse or civil partner but not by children, the spouse or civil partner will inherit the whole of the net intestate estate. When the Scottish Government consulted on that in 2015, there was agreement with the proposal, and the Scottish Government’s response committed to implementing the recommendation.

I am pleased that we have been able to address the issue, which, depending on the composition and size of the estate, has resulted in the bulk of the estate passing to parents or siblings rather than the surviving spouse. That is not what people expect to happen, and the bill will remedy that situation. We have also taken the opportunity to amend section 2 of the Succession (Scotland) Act 2016 to clarify the drafting so that it is not open to any unintended interpretation.

Finally, in respect of reforming the law of succession, I was pleased to lodge stage 2 amendments that addressed the unacceptable prospect of a convicted murderer continuing to act as executor of their victim’s estate. There is some uncertainty about the current position on that in Scots law, but the amendments will place it beyond any doubt that an executor who is convicted of, or is being prosecuted for, the murder or culpable homicide of the deceased will be regarded as unfit for that office and can be removed by the court, and that a sheriff must refuse any application for appointment as an executor dative in the same circumstances.

Those amendments fulfil a previous commitment that the Scottish Government made. They also implement a recommendation that the committee made, and I hope that they bring the necessary legal certainty to those who are experiencing that difficult situation. I am convinced that the bill will result in reforms to the law that will benefit all those who are involved in trusts.

I move,

That the Parliament agrees that the Trusts and Succession (Scotland) Bill be passed.