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All Official Reports of meetings in the Debating Chamber of the Scottish Parliament.
All Official Reports of public meetings of committees.
Displaying 1110 contributions
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
Good morning, everyone. I will ask about sections 25 and 26.
Section 25 requires trustees to tell a beneficiary that they are a beneficiary and to give them all the trustees’ names and correspondence details. That is mandatory for certain types of beneficiary. For potential beneficiaries, trustees have some discretion in what information is provided under section 25.
Section 26 is about what information must be made available to beneficiaries and potential beneficiaries, but a trust deed can override that section, although a court can later review the reasonableness of that override.
There is quite a bit of to-ing and fro-ing there, to make a point on what I have said. Various respondents to the committee’s call for views have said that the trustees’ duty to provide information to beneficiaries and potential beneficiaries under sections 25 and 26 is too onerous—they have to take into account too many elements. Do you have concerns about that? If you do, how would you amend the sections to address them?
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
Thank you very much for that. Ken Swinton, do you want to say anything?
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
That is perfectly understandable.
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
There is a range of disagreement and agreement. The issue is wide ranging and is one of policy, rather than being one for the lawyers to sort out. The lawyers can argue about it later, but we will argue about it first.
I have one last thing to talk about, which is the domicile of the trust and where it is based. The academic panel of Professor Paisley, Professor Gretton and Yvonne Evans were all pretty much agreed that a protector should not be able to move the permanent residence of a trust outside Scotland. On that basis, and in relation to section 49 of the bill, were the academics correct when they said that permitting the protector of a trust to move the domicile of a trust outside Scotland was undesirable in policy terms? What are your views on whether protectors should be allowed to do that?
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
That makes sense.
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
I understand exactly what you are talking about and can see how what you have said provides a bit of clarity on sections 25 and 26. However, is not there a wee issue for beneficiaries and potential beneficiaries in terms of trustees having too much power? Trustees might decide to go forward in a way that means that the beneficiary does not get as much from the trust as they otherwise might have had.
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
That is very clear, considering how woolly my question was. [Laughter.]
Ross Anderson, do you have anything to add?
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
If there are no other views, those answers have covered my question. Everyone here seems to be of broadly the same mind. That information will be very useful for us, so I thank you.
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
Following on the back of that, I will ask about the position on section 61—the alteration of trust purposes—when it comes to family trusts. Section 61 gives a power to the beneficiaries and others to apply to the court to alter the trust purposes of a family trust, and sets out the default position that the power cannot be used for 25 years.
You might have heard the previous panel speak somewhat about that. Given that the views on the 25-year restriction have been mixed, as I said, and that it is a default power only, are you satisfied that retaining the 25-year restriction in the bill is the right policy decision?
Delegated Powers and Law Reform Committee
Meeting date: 16 May 2023
Bill Kidd
That is an interesting angle as well.