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

  • Variation of trusts—Scotland
  • Revocable trusts
  • Common law jurisdiction: nobile officium
  • Variation of trustees’ powers under the Trusts (Scotland) Act 1921
  • Variation by court arrangement under the Trusts (Scotland) Act 1961
  • Approval on behalf of beneficiaries
  • Variation of alimentary liferent
  • Procedure
  • Variation of trust on divorce or dissolution
  • Public and charitable trusts

Under the common law, the opportunities for varying the terms or purposes of a trust are very limited once the trust has taken effect. If the trust is an inter vivos trust and is revocable, the truster can alter its terms at any time so long as they are sui juris. But the majority of inter vivos trusts are irrevocable once the trust has been constituted by delivery, and all testamentary trusts are irrevocable because they take effect only after a testator has died.

Where all the beneficiaries interested in the trust estate agree in asking the trustees to terminate the trust at a date prior to that contemplated by the truster, and if they are legally capable of giving their consent, the trustees are bound to do so on being exonerated and discharged. Any variation in the purposes of the trust or to the powers which have been given to the trustees which is agreed by all the beneficiaries will be binding on the trustees, subject again to the proviso that it is essential that all the beneficiaries should be of full age and capable of giving their consent.

The Trusts (Scotland) Act 1961 (T(S)A 1961) significantly extended the jurisdiction of the court to vary trusts.

Revocable trusts

In some circumstances a trust may be revoked by the truster, who withdraws