Rights of beneficiaries under Scottish law
Produced in partnership with Yvonne Evans, Law Lecturer, Solicitor (non-practising), TEP, University of Dundee
Rights of beneficiaries under Scottish law

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:

  • Rights of beneficiaries under Scottish law
  • General nature of beneficiaries’ rights
  • Rights on trustee’s insolvency
  • Mixed funds
  • Liferent trusts
  • Annuities
  • Discretionary trusts
  • Remedies

General nature of beneficiaries’ rights

The right of the beneficiaries of a trust is generally considered in Scots law to be only a personal right, but there are instances where the beneficiaries have rights akin to a real right of property.

In some respects, it is akin to a real right in that the beneficiaries’ right is preferred to the claims of a trustee’s personal creditors in the event of the trustee’s sequestration. Similarly, trust property cannot be affected by the diligence of a trustee’s personal creditors. Also, the beneficiaries’ right is not defeated by the alienation of trust property in breach of trust where the person acquiring it has not given full value for the property, or they have acquired it with actual or constructive knowledge of the trust.

Nevertheless, the beneficiaries’ right does not go as far as a real right because it can be defeated by a bona fide transferee who purchases for value. The right is also not a real right because the beneficiaries cannot enforce their rights against a third party, but can merely compel the trustees to take action against a third party. (Sharp v Thomson 1995 SLT 837 (appeal allowed on a point of statutory interpretation 1997 SLT 636) (not reported by LexisNexis®)).

In the law of England and Wales, a distinction is made between legal title