Part 1Trusts
Chapter 8Powers of the court
Variation and termination of private trusts
I159Agreement or approval for purposes of section 58(2)
1
In this section “agreement” means agreement for the purposes of section 58(2) and “approval” means approval for those purposes.
2
Agreement may be given by a beneficiary if the beneficiary either—
a
has attained the age of 18 years and is capable, or
b
is not a natural person.
3
Approval may be given by a potential beneficiary if that person falls within subsection (7).
4
Approval on behalf of a person who is incapable may be given by any person authorised to give it and having powers relating to the matter—
a
under the Adults with Incapacity (Scotland) Act 2000, or
b
under the law of a country other than Scotland.
5
Approval may be given by the court on behalf of—
a
a person who has not attained the age of 18 years,
b
a person who is incapable,
c
a potential beneficiary who does not fall within subsection (7),
d
an unborn person, or
e
a person who is untraceable.
6
The powers of the court under subsection (5) are exercisable on the application of the trustees or of any of the beneficiaries.
7
A potential beneficiary falls within this subsection where—
a
the potential beneficiary either—
i
has attained the age of 18 years and is capable, or
ii
is not a natural person, and
b
the potential beneficiary would be of the specified description, or as the case may be a member of the specified class, if—
i
the future date were the date of the hearing of the application for approval, or
ii
the future event had happened at the date of that hearing.
8
In subsection (7)(b), “specified description”, “specified class”, “future date” and “future event” are to be construed by reference to the definition, in section 81(1), of “potential beneficiary”.
9
a
applies irrespective of when the trust was created, but
b
does not apply as respects a private purpose trust or a public trust.