Nature and classification of trusts—Scotland
Produced in partnership with Yvonne Evans, Law Lecturer, Solicitor (non-practising), TEP, University of Dundee
Nature and classification of trusts—Scotland

The following Private Client guidance note Produced in partnership with Yvonne Evans, Law Lecturer, Solicitor (non-practising), TEP, University of Dundee provides comprehensive and up to date legal information covering:

  • Nature and classification of trusts—Scotland
  • Definitions
  • Dual patrimony theory
  • Classification of trusts

Definitions

It is difficult to find a wholly satisfactory definition of ‘trust’, given the range of situations where trusts arise.

The trust does not have a legal personality of its own. For practical purposes, a ‘trust’ may be defined as a legal relationship in which the legal title to property is transferred from the truster to a person or persons (the trustee/s) who does not acquire an unlimited right to the property, but who holds it subject to an obligation to apply it in accordance with the directions, express or implied, of the person who constituted the trust (the truster) for the benefit of certain persons (the beneficiaries).

This shows that three persons must be involved in any trust, namely truster, trustee and beneficiary. But they need not always be distinct—the same individual may appear in more than one capacity. Thus a truster may also be a trustee, and a truster or trustee may themselves be a beneficiary except that a sole trustee cannot be sole beneficiary. In such a case, due to confusione they would acquire full right of property.

The Trusts (Scotland) Act 1921 contains a definition of ‘trust’. In the construction of the Act, unless the context otherwise requires, ‘trust’ means and includes:

  1. any trust constituted by any deed or other writing, or by private or local Act of