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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 9 April 2025
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Displaying 367 contributions

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Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Mercedes Villalba

Okay. Thank you.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Mercedes Villalba

It sounds as though there are risks either way, regardless of whether a distinction is made. The issue becomes about where the burden should land. You said that one way of avoiding the problem could be for people to change and update their will, which is an administrative burden, obviously. However, the alternative is a different group of people being faced with that burden.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Mercedes Villalba

I would like to move us on to sections 16 and 17, which are on the trustees’ powers of investment. Yvonne Evans and others have suggested that, partly because of Scotland’s increasing emphasis on net zero goals, that sections 16 and 17 should be amended to explicitly allow trusts to make environmental, social and governance investments, particularly when those might underperform compared with other investments. We have heard mixed views on that. Does the bill allow trustees to do that already?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Mercedes Villalba

I want to take us back briefly to the question about the definition of “incapable”. I remember that the committee heard another view. As I have said, the suggestion was made to us that, rather than having a new, albeit similar, definition in the bill, the bill could refer to the Adults with Incapacity (Scotland) Act 2000 so that, as that is updated, the definition in the bill would automatically be updated. However, STEP Scotland raised a potential concern with us about tying the definition to that act, because

“Scots law applies to trustees of Scottish trusts even if they are not Scots law jurisdiction persons.”—[Official Report, Delegated Powers and Law Reform Committee, 16 May 2023; c 34.]

That means that, if we have the definition in the bill, we would at least be clear that it applies to trustees of Scottish trusts.

Have you considered that suggestion? Should we be concerned about it, or would it not cause issues? Would it be quite straightforward to simply link the definition to the 2000 act?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Mercedes Villalba

It sounds as though you are considering making a change to the bill along the lines that have been suggested. Do you think that there are any policy drawbacks to making that change?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Mercedes Villalba

Thank you.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Mercedes Villalba

Minister, does the default position that you have explained—that is, that individuals would not be personally liable but that there would be exceptions—mean that the Government does not propose to amend section 65 in any way?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Mercedes Villalba

But you are not currently proposing anything.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Mercedes Villalba

But, at this stage, you are not sure which way the balance will go.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 6 June 2023

Mercedes Villalba

Do you see that as a potential issue and that who the definition applies to could be unclear?