Chamber and committees

The final question is on part 2. As you will have heard in our previous evidence session, the committee has heard proposals for three policies that could be added to part 2 to improve it. The first is the creation of exceptions to legal rights as they currently apply to protect from disinheritance, which came from Professor Paisley; the second is the amending of the current strict six-month time limit that applies in the context of the cohabitant’s power to apply to the court for a share of the deceased’s estate, which came from the Faculty of Advocates and Yvonne Evans; and the third is clarifying that the law does not permit an unlawful killer to be an executor of their victim’s estate, which came from Professor Paisley and Professor Gretton.

We are keen to hear your views on those three proposals.

Is everyone in agreement?

We move on to section 19 of the bill, which provides that, unless the trust deed says otherwise, trustees could use a nominee in respect of any of the trustees’ powers. A nominee is someone to whom a trustee transfers ownership of trust property, often for investment purposes. The law firm CMS Cameron McKenna Nabarro Olswang is concerned that, as it is currently drafted, section 19 of the bill on nominees may not go far enough in capturing the ways in which trusts are used in the financial services sector. Specifically, the firm has said that doubt would remain as to whether trustees can use nominee custody structures and sub-custodians.

Do the witnesses have any views on the current scope of section 19 and the risks identified by CMS?

That is helpful; thank you.

I have a supplementary question for Alan Barr. You indicated that there is a spectrum of incapacity and that trusts might look at excluding people from specific aspects of decision making or from specific aspects of the trust. How easy or difficult would it be to do that?

Do you wish to come in, Joseph?

Okay. Thank you. Mercedes, do you have anything else to ask about?

Under item 4, we are considering one instrument that is not subject to parliamentary procedure, on which no points have been raised.

Is the committee content with the instrument?

Members indicated agreement.

Thank you, Jeremy.

I welcome to the meeting our first panel: Ross Anderson, partner, Jones Whyte; Sandy Lamb, partner, Lindsays; John McArthur, partner, Gillespie Macandrew; Caroline Pringle, director, Anderson Strathern; and Joseph Slane, associate, Turcan Connell. I should also note that Mercedes Villalba is joining us online.

I remind the witnesses not to worry about turning on the microphones during the session, as they are controlled by broadcasting. If you would like to come in on a question, please raise your hand or indicate as much to the clerks. There is also no need to answer every question; you can simply indicate when a question is not for you to respond to. Please feel free, though, to follow up in writing any question after the meeting, if you so wish.

I will open the questioning. On 2 May, the Scottish Law Commission told the committee that it is important that trust law reforms ultimately apply to pension trusts, too, and the current plan is for that to have effect through a section 104 order agreed between the Scottish and United Kingdom Governments. Do you share the view that the bill should apply to pension trusts in whole or in part? What, for you, would be the practical impact if there were a gap between the legislation coming into force for most trusts and then separately for pension trusts?