Seòmar agus comataidhean

I think that it does. The issue that the committee is grappling with is how we might allow for separation to be a factor without excluding people in similar circumstances to the examples that were given by Professor Paisley, where the surviving spouse is not normally living with the deceased. There are a whole range of situations in which that might occur. How do we define separation without it merely being geographical? There are many circumstances in which people might be physically separated but still together, as it were.

No problem. I want to look at the right of a spouse or civil partner to inherit under the part of the bill that deals with succession law. Various people who responded to the call for views—including Ms Evans, who is here today—have said that a distinction should be drawn between spouses or civil partners who were living with the deceased person at the time of their death and spouses or civil partners who had previously separated from the deceased person but had not divorced or had the partnership dissolved.

The committee is interested in the views of other witnesses on that. How easy is it in practice to draft legislation making separation a key factor in the scope of section 72 when, sometimes, in practice, whether a couple has finally separated for good might not be entirely clear at any given point in time? How can legislation address that?

Thank you.

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?

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.

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?

Thank you.

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

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.

Thank you.