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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 22 April 2025
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Displaying 2016 contributions

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Delegated Powers and Law Reform Committee

Instrument subject to Affirmative Procedure

Meeting date: 16 May 2023

Stuart McMillan

Under item 2, we are considering one instrument subject to the affirmative procedure, on which no points have been raised.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

Item 5 is evidence on the Trusts and Succession (Scotland) Bill. First, however, Jeremy Balfour would like to make a point.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

Notwithstanding what you have said, we heard in evidence last week that it is quite common for different regimes to apply in law. Although it would be beneficial to have one regime—and although people certainly want the section 104 order to be passed as quickly as possible so that that can happen—we heard last week that it would not be a deal breaker and it would not make things overly complicated if two different systems were in operation.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

I note that others around the room—even the folk sitting behind you—are nodding their heads in agreement.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

I welcome our second panel of witnesses: Alan Barr, who is the convener of the trusts and succession law sub-committee of the Law Society of Scotland; Laura Dunlop KC, who is the convener of the law reform committee of the Faculty of Advocates; Sarah-Jane Macdonald, who is a committee member of STEP Scotland; and Ken Swinton, who is a council member of the Scottish Law Agents Society.

I ask Jeremy Balfour whether he has anything to declare.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

Thank you.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

Thank you.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

The final question is on part 2. As you will have heard in our previous evidence session, the committee has heard proposals for three policies that could be added to part 2 to improve it. The first is the creation of exceptions to legal rights as they currently apply to protect from disinheritance, which came from Professor Paisley; the second is the amending of the current strict six-month time limit that applies in the context of the cohabitant’s power to apply to the court for a share of the deceased’s estate, which came from the Faculty of Advocates and Yvonne Evans; and the third is clarifying that the law does not permit an unlawful killer to be an executor of their victim’s estate, which came from Professor Paisley and Professor Gretton.

We are keen to hear your views on those three proposals.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Stuart McMillan

Is everyone in agreement?

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?