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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 11 October 2025
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Displaying 504 contributions

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Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Oliver Mundell

That would be helpful. It feeds into a wider issue—one which will potentially be referenced in other questions—about how people navigate the legislation, bearing in mind that a lot of the individuals who interact with it are not going to be legal professionals. Many people put themselves forward for smaller charitable trusts to try and do something good for society, and having clear advice and guidance for them on how legislation affects them would be useful.

You say that you do not expect an increase in litigation. However, the bill creates a lot of new opportunities for the courts to get involved in trusts, so it is hard to see how there would not be an increase in cases. What is your analysis based on?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Oliver Mundell

I will leave it for now, convener.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 23 May 2023

Oliver Mundell

Touching on that point, but more broadly, on 9 May we heard from legal academics including Professor Gretton and Yvonne Evans, who said that, in practice, a solicitor would just “draft around” a 25-year provision. This question may be for Chris Sheldon and Mike Blair: are we worrying too much about it? Would most trusts be drafted to give some leeway in relation to purpose?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 23 May 2023

Oliver Mundell

I am interested in sections 25 and 26. Concern has been expressed to the committee that trustees’ duties to provide information to beneficiaries and potential beneficiaries under those sections are too onerous and that the extent of the duties is uncertain. Do you want to share your views on the provisions, particularly if you have concerns? I am interested in how you would change the sections to address those concerns.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 23 May 2023

Oliver Mundell

I want to move on to section 61 of the bill, which gives power to the beneficiaries and others to apply to the court to alter the purposes of a family trust where there is a material change of circumstances. The section sets out the default position that that power cannot be used for 25 years. Is having such a 25-year restriction the correct approach? We would be interested to hear your views on that and your reasoning.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 2 May 2023

Oliver Mundell

I want to ask about litigation expenses and, in particular, the Law Society’s concerns about section 65. The Law Society was quite outspoken on that, citing

“a severe danger of a conflict of interest”

and describing section 65 as

“quite a radical provision”,

which, it suggested, may deter people from becoming trustees or lead them to unfavourably settle or to abandon legal proceedings for fear of personal liability. Do you have any comments in response?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 2 May 2023

Oliver Mundell

You would recognise the risk for parliamentarians and the Parliament in seeking to proceed with the legislation. If you read its submission as a whole, the Law Society is generally quite discursive about the bill. When I see words like

“severe danger of a conflict of interest”,

“radical provision” and “real issues”, it starts to worry me that the balance might not be quite right.

The Law Society also points out that non-recovery is a standard risk of litigating. I am thinking of examples where people take on roles in charitable trusts, not expecting that their personal property might be at risk if they proceed with litigation. I hear what you are saying about what the court “may” do, but if someone is taking legal advice it should be clear that there will always be a risk associated with that. I am just trying to satisfy myself that the bill strikes the right balance.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 2 May 2023

Oliver Mundell

The second part of my question was about whether you think that there is sufficient capacity and expertise to handle that.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 2 May 2023

Oliver Mundell

I will ask about the codification of trust law. The Law Society of Scotland and the Scottish Law Agents Society have expressed their support for the bill overall, but expressed regret that it is not a complete codification of trust law. For the committee’s benefit, what did you see as the drawbacks of attempting a full codification?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 2 May 2023

Oliver Mundell

The Law Society suggests that the starting point, or the principle, should be that trustees should not have any personal liability unless it can be shown that it is fair for them to be liable, so it is suggesting flipping that point around. Without summarising its position unfairly, from my reading it seems that it is suggesting that the principle that personal liability should be introduced is wrong.