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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 5 May 2021
  6. Current session: 12 May 2021 to 8 August 2025
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Displaying 418 contributions

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Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

Does the bill as drafted allow trustees to make such investments, or does it need to be amended to make it clear that such an option is open to them?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

My question is on section 72, which is about the right of a spouse or civil partner to inherit. It features in part 2, which is on succession law, and various stakeholders, including the Law Society, 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 who had not divorced or had not had the partnership dissolved.

It would be helpful for the committee to hear the witnesses’ views on that policy idea and that distinction. For example, do you agree that, with good drafting of the provision, it is possible to describe and define what is and is not separation? Obviously, we are aware of circumstances in which people are still very much together and in a relationship, even though they might be living separately for reasons outwith their control. One of them might be in prison, say, or working overseas. Is it possible to draft a clear distinction to cover those circumstances and would it be helpful to do so?

10:00  

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

As I understood it, the proposal was not to instruct but to include a clarification, for the avoidance of doubt. Are you saying that you do not think that that would be necessary, or that it would be unhelpful if it was included in the bill?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 16 May 2023

Mercedes Villalba

Are there changes that you would like to be made, based on that concern?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

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.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

Thank you.

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

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?

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

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

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

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?

11:15  

Delegated Powers and Law Reform Committee

Trusts and Succession (Scotland) Bill: Stage 1

Meeting date: 9 May 2023

Mercedes Villalba

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.