Scottish trust law—overview and historical development
Produced in partnership with Yvonne Evans, Law Lecturer, Solicitor (non-practising), TEP, University of Dundee
Scottish trust law—overview and historical development

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:

  • Scottish trust law—overview and historical development
  • Civilian origin of Scots trust law and fideicommissum
  • Early developments—public and charitable trusts
  • Feudal conveyancing and trusts
  • English influences on Scots trust law
  • Commercial uses of trusts
  • Reform of Scots trust law

Civilian origin of Scots trust law and fideicommissum

The law of trusts in Scotland is significantly different from the law of trusts in England in several important ways, although Scots law has imported a number of English concepts and some terminology. A brief account of the historic roots of the Scots law of trust may assist in understanding. Trust law in Scotland has administrative and property aspects, as it has in civilian legal systems. As with most of these systems, Scots law has never recognised a doctrine of legal and equitable estates, which are peculiar to systems derived from English law.

Even though the concept of trust is now institutionalised, the expressions trust and trustee are applied to a number of fiduciary situations. Some of these have rules prescribed by statute or developed by the common law. Anyone placed in a fiduciary situation so that they are precluded from becoming auctor in rem suam may be described as a trustee even though no property is vested in them nor have they any managerial duties.

Fideicommissum

One historic root of Scots trust law is fideicommissum, a Roman doctrine received in various forms by European civil law jurisdictions which had, like Scots law, adopted feudal systems of land tenure.

This connection was clear in relation to the tailzie, a trust-like way of dividing ownership