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Chamber and committees

Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 3 July 2025
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Displaying 418 contributions

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Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

I will move on to sections 65 and 66, on the expenses of litigation. The Law Society, although supportive of the bill overall, is very concerned about the policy current underpinning section 65, which provides principles to determine how legal bills are paid for in trust cases. The Law Society says that trustees should not find themselves personally liable for the expenses of litigation where there is insufficient trust property. The Law Society thinks that section 65 will deter people from becoming trustees and may lead them to unfavourably settle or abandon legal proceedings for fear of personal liability. Do you share those concerns or can you offer the committee any reassurance in that regard?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

So, you see no need to amend the bill further to account for that, as this sort of thing can be done in other ways.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

We know that reforms to capacity law might be forthcoming due to the report of the Scottish Mental Health Law Review. Can future proofing the bill be achieved simply by ensuring that there is a route to easily amend the definition of “incapable” in the bill, or would more significant structural changes to the trust legislation be required?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

Thank you.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

I will leave that there and move on to part 2 of the bill, looking at section 72—

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

Moving on to trustees’ powers of investment, I note that Ms Evans, along with the Law Society, has suggested that, in view of Scotland’s increasing emphasis on net zero, sections 16 and 17 could be amended to allow trusts to adopt environmentally friendly investment policies, particularly when those kinds of investments “might ... underperform compared to” other investments. We are keen to hear the views of the other witnesses on that policy idea.

In terms of drafting, the Scottish Law Commission seems to think that the bill would already permit trustees to focus on environmentally friendly investments. My question for everyone is: do you agree with that, or do you think that the bill would need to be altered to achieve that policy outcome, either partly or fully?

Perhaps we could start with Professor Gretton.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 2 May 2023

Mercedes Villalba

Thank you.

Delegated Powers and Law Reform Committee

Interests

Meeting date: 2 May 2023

Mercedes Villalba

Thank you for having me.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 2 May 2023

Mercedes Villalba

The Law Society and the academic lawyer, Yvonne Evans, have suggested that, in view of Scotland’s increasing emphasis on net zero goals, sections 16 and 17 could be amended in relation to trustees’ powers of investment. The bill could be amended to allow trusts to adopt environmentally friendly investment policies, particularly when those might underperform compared with other investments. Does the commission have a view on that suggested amendment?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 2 May 2023

Mercedes Villalba

Thank you very much.