Chamber and committees

I will bring in Michael Paparakis to answer that question.

We will look at that further and get back to the committee.

The Scottish Government consulted back in 2016, and the changes that will be made by the bill received the backing of an overwhelming number of consultees. I understand that the Law Society has made a drafting suggestion that, in its view, would resolve the problem that has been identified. My officials are currently considering that. However, any test could come with its own set of problems.

The committee has heard from stakeholders that certainty is an important feature of Scots succession law. The provision provides certainty, and the definition of separated spouses risks creating unwelcome uncertainty. Any definition risks—however remote some might consider the risk to be—disinheriting spouses who are living apart only because they are prevented from living together. That might include couples in which one of the spouses is in long-term care or prison. Separated spouses can already avoid that problem altogether by preparing a new will, updating their current will or preparing a separation agreement. The change that will be brought about by the bill will be limited to cases in which there is no will and no children. The suggested change would be at odds with the position under the law of succession, whereby a will that is not changed following a couple’s separation will continue to be given effect up until the parties’ divorce.

There are unanswered policy questions about the proposed alternative approach. For example, it is not clear whether a separated spouse would still inherit some of the estate—but only after the deceased’s parents or siblings—or whether the separated spouse should not inherit anything.

As I have said, my officials are considering the issue at the moment.

If the committee would like to write to me to make recommendations at stage 1, I would be happy to take those to the SLC to discuss.

That could be quite difficult to do, but I am willing to consider that and speak to SLC and my officials regarding that.

On the interaction with the Charities (Regulation and Administration) (Scotland) Bill, charity law and trust law are two distinct and well-established areas of Scots law. That point was made separately by Lord Drummond Young and John McArthur in their evidence to the committee. We know that 12 per cent of charities that are registered in Scotland take trust as their legal form, and those charities are subject to both charity law and trust law. Otherwise, there is a range of other legal forms that charities can take, which include a company, an unincorporated association and a Scottish charitable incorporated organisation. Charitable companies, for example, must comply with charity law and company law, and trust law is of no relevance to them.

OSCR has written to the committee and welcomed the bill. It has said of the trustee’s duty of care, for instance, that it fits with

“the standard of care expected of charity trustees when managing the ... charity”.

My view is that the two bills complement each other and work well together, and that the modernisation of trust law is helpful for charities that take trust as their legal form.

The power would not allow a protector to amend the domicile of a trust, but would instead allow a protector to determine, but not thereafter to change, the jurisdiction whose laws shall be used to determine what the governing law of the trust is. Accordingly, where a protector determines that the law of domicile of a trust is in Scotland, the domicile of that trust will be determined in accordance with Scots law. Under Scots law, it may be determined that the domicile of a trust is a jurisdiction other than Scotland. I am happy to work with the committee on that issue.

Yes.

The law of succession affects everyone, but it can also divide opinion. The committee has heard that, although everyone agrees that the law of succession needs reforming, there is no consensus on what those reforms should be. It has heard about possible reforms to the financial provision for cohabitants when one partner dies, which the Scottish Government has consulted on previously.

Any amendment to the relevant timescale would need to address the issue of scope and it would fragment the law in the area. Recently, the SLC has published a report on financial provision in the case of the breakdown of a cohabiting relationship in circumstances other than death. The Scottish Government will give consideration to a revised definition of cohabitants, which should extend to situations in which a cohabiting relationship ends by way of death, including the relevant timescale.

We took the recommendations from the Scottish Law Commission but if the committee wants to make any suggestions in its stage 1 report we would be happy to consider them and talk to the SLC.