Chamber and committees

Okay. Thank you for that.

No, convener—that was very helpful.

On sections 7 and 12, we have heard quite a lot of evidence, particularly last week, that it would be difficult for trustees to reach a decision on whether a particular trustee was incapable, and there was concern about the possible abuse of those sections, with trustees perhaps trying to get rid of each other by using that methodology. Should there be a statutory procedure for assessing a specific trustee’s capacity by a third party, such as a medical professional, or would there be drawbacks in going down that road?

That does not cover all situations, however. For example, I could have a trust as a person with a physical disability. If the person who is the trustee loses capacity for whatever reason and I lose capacity at the same time, how will the trust run if nobody else has been appointed? How will my payments be made?

I move to section 61 of the bill, which gives a power to the beneficiaries, and others, to apply to the court to alter the trust purposes of a family trust where there is a material change in circumstances. Section 61 sets out the default position that that power cannot be used for 25 years. Most, though not all, of those who expressed a view to the committee thought that the 25-year period was too long. How did you arrive at the period of 25 years and, having heard the evidence, are you persuaded that that is still the right period?

STEP Scotland was also critical of a further requirement to be met before the court power could be used, which is that the person who set up the trust must now be dead. Does the Scottish Government still think that that requirement should be in section 61? What was the rationale for that provision?

I thought that that power was new to OSCR, but I will go and check that out. Your answer is helpful.

What do you make of the interaction between the two bills? Do you think that there needs to be any more clarification of how the two bills will work together?

I suppose that I am trying to push at whether we believe that, as a principle in law, there should ever be only a sole trustee in a trust. Does the Government have a view on that? Do you agree that trusts should have more than one trustee?

In the evidence that we have heard, particularly last week, there seemed to be some confusion with regard to the different types of trusts, as we have discussed already. Obviously, the Scottish Law Commission did not consider that, but has the Government considered trying to define a bit more clearly the different types of trust and how they work in practice? Indeed, we heard evidence from an individual with quite a lot of expertise in being a trustee, and she was not sure where one of the trusts that she is dealing with at the moment would fit into the bill. Has any thought been given to trying to define different forms of trusts, and if not, why not?

To follow up on that issue, what would be the disadvantage of allowing the trustees to decide whether to go to the Court of Session or to a sheriff court? I presume that the trustees would take legal advice, and their lawyers could advise them of the best option. What would be the disadvantage of letting the trust make that decision, instead of its having to go down a certain route?

Thank you.