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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 4 May 2021
  6. Current session: 13 May 2021 to 12 November 2025
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Displaying 2327 contributions

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Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

We move on to section 19 of the bill, which provides that, unless the trust deed says otherwise, trustees could use a nominee in respect of any of the trustees’ powers. A nominee is someone to whom a trustee transfers ownership of trust property, often for investment purposes. The law firm CMS Cameron McKenna Nabarro Olswang is concerned that, as it is currently drafted, section 19 of the bill on nominees may not go far enough in capturing the ways in which trusts are used in the financial services sector. Specifically, the firm has said that doubt would remain as to whether trustees can use nominee custody structures and sub-custodians.

Do the witnesses have any views on the current scope of section 19 and the risks identified by CMS?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

That is helpful; thank you.

10:26 Meeting suspended.  

10:31 On resuming—  

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

I have a supplementary question for Alan Barr. You indicated that there is a spectrum of incapacity and that trusts might look at excluding people from specific aspects of decision making or from specific aspects of the trust. How easy or difficult would it be to do that?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

Do you wish to come in, Joseph?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

Okay. Thank you. Mercedes, do you have anything else to ask about?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

It might be worth while to consider the matter. If you were to think of anything after the meeting, you could always send it in.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

No—I am certainly not suggesting that.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

We move to section 19, on nominees. As I indicated to the previous panel, the law firm CMS is concerned that section 19, on nominees, as drafted, may not go far enough. Specifically, the firm said that “doubt” would remain as to whether trustees can use, first, nominee custody structures and, secondly, sub-custodians. What are the panel members’ views on both those aspects, which currently fall under the scope of section 19, and on the risks that CMS has identified?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

Would anyone else like to come in?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

We move to part 2 of the bill. The committee has heard suggestions of three policy proposals that could be added to part 2. First, last week, Professor Roderick Paisley suggested creating exceptions to legal rights as they currently apply to protect from disinheritance. Secondly, the Faculty of Advocates and Yvonne Evans suggested amending the current strict six-month time limit that applies to a cohabitant’s power to apply to the court for a share of the deceased’s estate. Thirdly, Professors Roderick Paisley and George Gretton suggested clarifying that the law does not permit an unlawful killer to be an executor of their victim’s estate. What are your views on those three proposals? Should they be added to part 2? Should any other changes be made to part 2?

10:15