Powers and duties of trustees—Scotland
Produced in partnership with Peter Murrin of Turcan Connell
Powers and duties of trustees—Scotland

The following Private Client guidance note Produced in partnership with Peter Murrin of Turcan Connell provides comprehensive and up to date legal information covering:

  • Powers and duties of trustees—Scotland
  • Source of trustees' powers
  • Exercise of powers
  • Adminstrative v dispositive powers
  • The role of the court
  • Duties of trustees
  • Trustee remuneration and modification of trustees' duties
  • Trustee immunity and indemnity clauses

It is worth noting at the outset that powers will enable trustees to act and give effect to the trust purposes whereas duties will compel trustees to meet an obligation.

Source of trustees' powers

Trustees' powers are derived from a combination of current law and the applicable deed of trust.

Trustees' powers flow from a composite of legislative enactments incorporating the Trusts (Scotland) Act 1921 (T(S)A 1921), the Trusts (Scotland) Act 1961 (T(S)A 1961), the Trustee Investments Act 1961, and the Charities and Trustee Investment (Scotland) Act 2005 (CTI(S)A 2005).

Perhaps most notable is that general powers of trustees are to be found in T(S)A 1921, s 4, powers and duties specific to a trustee's powers of investments are incorporated at T(S)A 1921, ss 4A–4C, and powers capable of being granted by the court at T(S)A 1921, s 5.

Supplementary to the above will be the powers incorporated in the deed of trust itself. It is common for trustees' powers as provided for in the trust deed to be extensive and ‘catch all’. Certainly, it would be expected to see specific narrative dealing with trustees' powers to invest the trust fund, to deal with heritable property, to advance capital and income, to lend (often with or without security), to delegate or instruct professional advisors (or agents or nominees), to insure, and to deal