Bankruptcy (Scotland) Act 2016

167 Statements in and advice regarding trust deed S

(1) The trust deed must state—

(a) that, subject to any exclusion mentioned in paragraph (b)(i) of the trust deed definition, all of the debtor's estate (other than property listed in section 88(1) or which would be excluded under any other provision of this Act or of any other enactment from vesting in the trustee of a sequestrated estate) is conveyed to the trustee, and

(b) that the debtor agrees to convey to the trustee, for the benefit of creditors generally, any estate (wherever situated) which—

(i) is acquired by the debtor during the 4 years beginning with the date on which the trust deed is granted, and

(ii) would have been conveyed to the trustee by virtue of paragraph (a) had it been part of the debtor's estate on the date on which the trust deed was granted.

(2) Where the debtor's dwellinghouse, or part of the debtor's dwellinghouse, is excluded as mentioned in paragraph (b)(i) of the trust deed definition from the estate conveyed to the trustee, the trust deed must also include details—

(a) of any secured creditor who has agreed not to claim under the trust deed for any of the debt in respect of which the security is held, and

(b) of that debt.

(3) Before the debtor grants the trust deed—

(a) the trustee must advise the debtor that granting the deed may result—

(i) in the debtor's estate being sequestrated,

(ii) in the debtor's being refused credit, whether before or after the debtor's discharge under section 184,

(iii) subject to any exclusion mentioned in paragraph (b)(i) of the trust deed definition, in the debtor's not being able to remain in the debtor's current place of residence,

(iv) subject to any such exclusion, in the debtor's being required to relinquish property which the debtor owns,

(v) in the debtor's being required to make contributions from income for the benefit of creditors,

(vi) in damage to the debtor's business interests and employment prospects, and

(vii) in the fact of the debtor's having granted a trust deed becoming public information,

[F1 (b) the trustee must provide the debtor with—

(i) a copy of a debt advice and information package, and

(ii) a copy of a trust deed information document,

(ba) the trustee must give the debtor adequate time to consider the advice and material provided under paragraphs (a) and (b),]

(c) the trustee and the debtor must both sign a statement to the effect that the trustee has fulfilled the duties referred to in this subsection.

[F2 (4) For the purposes of subsection (3) a “trust deed information document” means a document containing such information (including information regarding the consequences of granting a trust deed), and in such form, as the Scottish Ministers may determine.

(5) The trustee must have regard to any guidance issued by the Scottish Ministers about giving debtors adequate time to consider the advice and material provided under paragraphs (a) and (b) of subsection (3).

(6) The Scottish Ministers must publish any guidance issued under subsection (5).]

Textual Amendments

F1 S. 167(3)(b)(ba) substituted for s. 167(3)(b) (20.1.2025) by Bankruptcy and Diligence (Scotland) Act 2024 (asp 9), ss. 10(2)(a), 22(2); S.S.I. 2024/373, reg. 2 (with regs. 3, 4)

F2 S. 167(4)-(6) inserted (20.1.2025) by Bankruptcy and Diligence (Scotland) Act 2024 (asp 9), ss. 10(2)(b), 22(2); S.S.I. 2024/373, reg. 2 (with regs. 3, 4)

Commencement Information

I1 S. 167 in force at 30.11.2016 by S.S.I. 2016/294, reg. 2