Scottish Trust law is in the process of an overhaul, and last month MPs voted unanimously to approve the Trusts and Succession Scotland Bill, which is expected to receive royal assent this year. Scots trust law is currently based on the Trusts (Scotland) Act 1921. As the jurisdiction next door, with which England & Wales has very close links, it is always interesting to keep an eye on developments in Scots law. Scotland is a smaller, more nimble jurisdiction than England & Wales. As such, it has a history of acting as the guinea pig for new legislation, before it is rolled out throughout the rest of Great Britain.
Removal of the ‘killer executor’ clause
There have been sensational headlines in the press over the new ‘killer executor’ clause. This sets out that a court can remove an executor who has been convicted of the murder or culpable homicide of the deceased, which seems eminently reasonable. This change follows the recent Scottish case of Taggart, where a man murdered his mother but then refused to give up his role as executor of her Will, despite currently serving a life sentence in prison for her murder. The law already provides that a murderer cannot benefit from their victim’s estate, but the matter of their executorship had been overlooked until now.
Removal and Appointment of Trustees
The Trusts and Succession (Scotland) Bill also addresses the removal of a trustee by their co-trustees. Under the new rules, a trustee can be removed from office by a majority of the other trustees if they have lost mental capacity, or been convicted of an offence involving dishonesty. A professional trustee can be removed by their fellow trustees if they are no longer entitled to practise, or are no longer a member of a regulated profession.
In addition, the new Bill provides that if the beneficiaries of a trust are all adults and have legal capacity, and they are entitled to the trust property, they can decide to remove a trustee.
Trustees are also given power to appoint new trustees, unless the trust deed says otherwise.
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