Commentary on Sections Part 1 – Trusts Applications to the Court of Session
79.Section 47 of the Act implements recommendation 70(3). It allows any person with an interest in the purpose of a private purpose trust to apply to the Court of Session for an order requiring steps to be taken for the fulfilment of that purpose. There is already a right at common law for anyone with an interest in a Scottish public trust to seek enforcement of its purposes, and this section makes clear that the same principle applies to private purpose trusts.
80.Section 48 of the Act implements recommendation 70(4) and (5). It permits the Court of Session, on application, to reform a private purpose trust where the execution of the trust purpose has become, for example, impossible or impracticable. The remedies which the court may direct are set out in subsection (3) and are essentially twofold: either the court may direct that the property be held on trust for a different purpose, or (if that cannot be done) that it be disposed of as if the trust had failed, either in whole or in part. Subsection (4) states that the procedure is only available where the trust deed does not permit reform by other means, but otherwise the section as a whole is mandatory.