Trusts and Succession (Scotland) Act 2024

Breach of duty etc.

32 Breach of fiduciary duty at instigation or request of beneficiary or with consent of beneficiary

(1) This section applies where a trustee is in breach of a fiduciary duty—

(a) at the instigation or request of a beneficiary, or

(b) with the written consent of a beneficiary.

(2) The court may if it thinks fit make such order, assigning by way of indemnity all or part of the beneficiary’s interest in the trust property to the trustee or (as the case may be) to any person claiming through the trustee, as seems to the court to be just.

(3) This section applies—

(a) irrespective of when the trust was created, but

(b) only as respects a breach of a fiduciary duty occurring after the section comes into force.

33 Order relieving trustee of consequences of actings which are ultra vires

(1) This section applies where actings of a trustee are ultra vires.

(2) On the application of the trustee the court may, if the condition mentioned in subsection (3) is satisfied, make such order relieving the trustee of the consequences of those actings as seems to the court to be just.

(3) The condition is that the trustee believes (after taking all reasonable steps and making all reasonable enquiry) that it is within the trustee’s powers to act as the trustee does.

(4) Subsection (2) is without prejudice to any right of a beneficiary or trustee to recover trust property from a person, other than a trustee, to whom a payment would not have been made but for the actings in question.

(5) This section applies—

(a) irrespective of when the trust was created, but

(b) only as respects actings occurring after the section comes into force.

34 Provision purporting to limit liability for, or indemnify for, breach of fiduciary duty

(1) In so far as a provision of a trust deed purports generally to—

(a) limit any liability of a trustee for, or

(b) indemnify a trustee for,

the trustee’s breach of a fiduciary duty, the provision is of no effect.

(2) But subsection (1) is without prejudice to any provision of a trust deed which authorises a particular action or decision, or a particular class of actions or decisions, which but for that authority would constitute a breach of a fiduciary duty.

(3) This section applies—

(a) irrespective of when the trust was created, but

(b) only as respects a breach of a fiduciary duty occurring after the section comes into force.

35 Order relieving trustee of consequences of entering into a transaction in breach of fiduciary duty

(1) This section applies where a trustee has entered into, or proposes to enter into, a transaction in breach of a fiduciary duty.

(2) The court may, on the application of the trustee, if it thinks fit and if the conditions mentioned in subsection (3) are satisfied make such order, relieving the trustee of the consequences of breaching that duty, as seems to the court to be just.

(3) The conditions are—

(a) that the transaction has benefited, or is likely to benefit, both the trust property and (collectively) the beneficiaries, and

(b) that the terms of the transaction are at least as favourable to the trust property as those likely to have been, or to be, obtained in a comparable commercial transaction at arms-length.

(4) This section applies—

(a) irrespective of when the trust was created, but

(b) only as respects a transaction entered into, or to be entered into, after the section comes into force.