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Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details)
Age of Legal Capacity
(Scotland) Act 1991
1991 CHAPTER 50
An Act to make provision in the law of Scotland as to the legal capacity of persons under
the age of 18 years to enter into transactions, as to the setting aside and ratification by
the court of transactions entered into by such persons and as to guardians of persons
under the age of 16 years; to make provision in the law of Scotland relating to the time
and date at which a person shall be taken to attain a particular age; and for connected
purposes. [25th July 1991]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— Modifications etc. (not altering text) C1 Act excluded (19.2.1996) by 1995 c. 6, s. 2(3) ; S.I. 1996/125, art. 2 (with art. 3) Commencement Information I1 Act wholly in force at 25. 9. 1991 see s. 11(2) 1 Age of legal capacity. (1) As from the commencement of this Act— (a) a person under the age of 16 years shall, subject to section 2 below, have no legal capacity to enter into any transaction; (b) a person of or over the age of 16 years shall have legal capacity to enter into any transaction. (2) Subject to section 8 below, any reference in any enactment to a pupil (other than in the context of education or training) or to a person under legal disability or incapacity
Document Generated: 2021-08- Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details) by reason of nonage shall, insofar as it relates to any time after the commencement of this Act, be construed as a reference to a person under the age of 16 years. (3) Nothing in this Act shall— (a) apply to any transaction entered into before the commencement of this Act; (b) confer any legal capacity on any person who is under legal disability or incapacity other than by reason of nonage; (c) affect the delictual or criminal responsibility of any person; (d) affect any enactment which lays down an age limit expressed in years for any particular purpose; (e) prevent any person under the age of 16 years from receiving or holding any right, title or interest; (f) affect any existing rule of law or practice whereby— (i) any civil proceedings may be brought or defended, or any step in civil proceedings may be taken, in the name of a person under the age of 16 years [F1 in relation to whom there is no person entitled to act as his legal representative (within the meaning of Part I of the Children (Scotland) Act 1995), or where there is such a person ] is unable (whether by reason of conflict of interest or otherwise) or refuses to bring or defend such proceedings or take such step; (ii) the court may, in any civil proceedings, appoint a curator ad litem to a person under the age of 16 years; (iii) the court may, in relation to the approval of an arrangement under section 1 of the M1 Trusts (Scotland) Act 1961, appoint a curator ad litem to a person of or over the age of 16 years but under the age of 18 years; (iv) the court may appoint a curator bonis to any person; (g) prevent any person under the age of 16 years from [F2 exercising parental responsibilities and parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to any child of his. ] (4) Any existing rule of law relating to the legal capacity of minors and pupils which is inconsistent with the provisions of this Act shall cease to have effect. (5) Any existing rule of law relating to reduction of a transaction on the ground of minority and lesion shall cease to have effect. Textual Amendments F1 Words in s. 1(3)(f)(i) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 53(2)(a) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch. F2 Words in s. 1(3)(g) substituted for s. 1(3)(g)(i)(ii) (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 53(2)(b) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch. Marginal Citations M1 (^) 1961 c. 57.
Document Generated: 2021-08- Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details) F5 S. 2(4A)-(4C) inserted (1.11.1995) by 1995 c. 36, s. 105(4), Sch. 4 para. 53(3) (with s. 103(1)); S.I. 1995/2787, art. 3, Sch. 3 Setting aside of transactions. (1) A person under the age of 21 years (“the applicant”) may make application to the court to set aside a transaction which he entered into while he was of or over the age of 16 years but under the age of 18 years and which is a prejudicial transaction. (2) In this section “prejudicial transaction” means a transaction which— (a) an adult, exercising reasonable prudence, would not have entered into in the circumstances of the applicant at the time of entering into the transaction, and (b) has caused or is likely to cause substantial prejudice to the applicant. (3) Subsection (1) above shall not apply to— (a) the exercise of testamentary capacity; (b) the exercise by testamentary writing of any power of appointment; (c) the giving of consent to the making of an adoption order; (d) the bringing or defending of, or the taking of any step in, civil proceedings; (e) the giving of consent to any surgical, medical or dental procedure or treatment; (f) a transaction in the course of the applicant’s trade, business or profession; (g) a transaction into which any other party was induced to enter by virtue of any fraudulent misrepresentation by the applicant as to age or other material fact; (h) a transaction ratified by the applicant after he attained the age of 18 years and in the knowledge that it could be the subject of an application to the court under this section to set it aside; or (j) a transaction ratified by the court under section 4 below. (4) Where an application to set aside a transaction can be made or could have been made under this section by the person referred to in subsection (1) above, such application may instead be made by that person’s executor, trustee in bankruptcy, trustee acting under a trust deed for creditors or curator bonis at any time prior to the date on which that person attains or would have attained the age of 21 years. (5) An application under this section to set aside a transaction may be made— (a) by an action in the Court of Session or the sheriff court, or (b) by an incidental application in other proceedings in such court, and the court may make an order setting aside the transaction and such further order, if any, as seems appropriate to the court in order to give effect to the rights of the parties. 4 Ratification by court of proposed transaction. (1) Where a person of or over the age of 16 years but under the age of 18 years proposes to enter into a transaction which, if completed, could be the subject of an application to the court under section 3 above to set aside, all parties to the proposed transaction may make a joint application to have it ratified by the court. (2) The court shall not grant an application under this section if it appears to the court that an adult, exercising reasonable prudence and in the circumstances of the person referred to in subsection (1) above, would not enter into the transaction. (3) An application under this section shall be made by means of a summary application—
Document Generated: 2021-08- 5 Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details) (a) to the sheriff of the sheriffdom in which any of the parties to the proposed transaction resides, or (b) where none of the said parties resides in Scotland, to the sheriff at Edinburgh, and the decision of the sheriff on such application shall be final. 5 Guardians of persons under 16. (1) Except insofar as otherwise provided in Schedule 1 to this Act, as from the commencement of this Act any reference in any rule of law, enactment or document to the tutor F6... of a pupil child shall be construed as a reference to [F7 a person entitled to act as a child’s legal representative (within the meaning of Part I of the Children (Scotland) Act 1995), and any reference to the tutory of such a child shall be construed as a reference to the entitlement to act as a child’s legal representative enjoyed by a person by, under or by virtue of the said Part I. ] (2) Subject to section 1(3)(f) above, as from the commencement of this Act no guardian of a person under the age of 16 years shall be appointed as such except under [F8 section 7 of the Children (Scotland) Act 1995. ] (3) As from the commencement of this Act, no person shall, by reason of age alone, be subject to the curatory of another person. (4) As from the commencement of this Act, no person shall be appointed as factor loco tutoris. Textual Amendments F6 Words in s. 5(1) repealed (1.11.1996) by 1995 c. 36, s. 105(4)(5), Sch. 4 para. 53(4)(a), Sch. 5 (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch. Table F7 Words in s. 5(1) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 53(4)(b) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch. F8 Words in s. 5(2) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 53(5) (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch. 6 Attainment of age. (1) The time at which a person attains a particular age expressed in years shall be taken to be the beginning of the relevant anniversary of the date of his birth. (2) Where a person has been born on 29th February in a leap year, the relevant anniversary in any year other than a leap year shall be taken to be 1st March. (3) The provisions of this section shall apply only to a relevant anniversary which occurs after the commencement of this Act. F9 7 Acquisition of domicile.
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Document Generated: 2021-08- 7 Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details) 11 Short title, commencement and extent. (1) This Act may be cited as the Age of Legal Capacity (Scotland) Act 1991. (2) This Act shall come into force at the end of the period of two months beginning with the date on which it is passed. (3) This Act shall extend to Scotland only.
SCHEDULE 1 – AMENDMENT OF ENACTMENTS Document Generated: 2021-08- Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details) S C H E D U L E S SCHEDULE 1 Section 10. AMENDMENT OF ENACTMENTS Defence Act 1842 (c.94) 1 In section 15, for the words “persons within the age of twenty-one years” substitute the words “or, being persons under legal disability by reason of nonage”; and for the words “come and be at the age of twenty-one years” substitute the words “cease to be under legal disability by reason of nonage or come and be”. 2 In section 27, for the words “infancy or” substitute the words “persons under legal disability by reason of nonage or of”. Lands Clauses Consolidation (Scotland) Act 1845 (c.19) F11 3................................ Textual Amendments F11 (^) Sch. 1 para. 3 repealed (1.11.1996) by 1995 c. 36, s. 105(5), Sch. 5 (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch. Table F12 4................................ Textual Amendments F12 (^) Sch. 1 para. 4 repealed (1.11.1996) by 1995 c. 36, s. 105(5), Sch. 5 (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch. Table F13 5................................ Textual Amendments F13 (^) Sch. 1 para. 5 repealed (1.11.1996) by 1995 c. 36, s. 105(5), Sch. 5 (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch. Table 6 In section 70, for the word “infancy” substitute the words “legal disability by reason of nonage”. Judicial Factors Act 1849 (c.51) F14 7................................
SCHEDULE 1 – AMENDMENT OF ENACTMENTS Document Generated: 2021-08- Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details) Textual Amendments F21 Sch. 1 para. 14 repealed (1.11.1996) by 1995 c. 36, s. 105(5), Sch. 5 (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch. Table F22 15................................ Textual Amendments F22 Sch. 1 para. 15 repealed (1.11.1996) by 1995 c. 36, s. 105(5), Sch. 5 (with s. 103(1)); S.I. 1996/2203, art. 3(3), Sch. Table Improvement of Land Act 1864 (c.114) 16 In section 18, for the words “an infant or infants, or a minor or minors” substitute the words “a person under legal disability by reason of nonage”. 17 In section 24, for the words “infants, minors” substitute the words “persons under legal disability by reason of nonage”. 18 In section 68, for the word “infant” substitute the words “person under legal disability by reason of nonage”. Titles to Land Consolidation (Scotland) Act 1868 (c.101) 19 In section 24, for the words “pupil, minor” wherever they occur substitute the words “person under legal disability by reason of nonage”. 20 In section 62, for the words “in nonage” substitute the words “under legal disability by reason of nonage”. 21 In section 119, for the words “of full age, or in pupillarity or minority, or although he should be subject to any legal incapacity” substitute the words “subject to any legal incapacity or not”. Colonial Stock Act 1877 (c.59) 22 In section 26 (definitions) after the definition of “colony” there shall be inserted— “The expression “infant”, in relation to Scotland, means a person under legal disability by reason of nonage, and the expression “infancy” shall be construed accordingly:” Heritable Securities (Scotland) Act 1894 (c.44) 23 In section 13, for the words “in pupillarity or minority, or subject to any legal incapacity” substitute the words “subject to any legal disability by reason of nonage or otherwise”; and after the word “curators,” insert the word “guardians”. Merchant Shipping Act 1894 (c.60) 24 In section 55(1), for the word “infancy” substitute the words “legal disability by reason of nonage”.
SCHEDULE 1 – AMENDMENT OF ENACTMENTS Document Generated: 2021-08- 11 Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details) Trusts (Scotland) Act 1921 (c.58) 25 In section 2, in the definitions of “trust” and “trust deed”, after the word “curator” insert the word “guardian”, and, in the definition of “trustee”, for the words from “tutor” to “curator” substitute the words “tutor, curator, guardian (including a father or mother acting as guardian of a child under the age of 16 years)”. Conveyancing (Scotland) Act 1924 (c.27) 26 In section 41(1), for the words from “in pupillarity” to “incapacity” substitute the words “subject to any legal disability by reason of nonage or otherwise”. Trusts (Scotland) Act 1961 (c.57) 27 In section 1, in subsection (1)(a) after the word “who” insert the words “because of any legal disability”, and, in subsection (2), for the words “over the age of pupillarity” substitute the words “of or over the age of 16 years”. Registration of Births, Deaths and Marriages (Scotland) Act 1965 (c.49) F23 28................................ Textual Amendments F23 (^) Sch. 1 para. 28 repealed (1.1.2007) by Registration Services (Consequential Provisions) (Scotland) Order 2006 (S.S.I. 2006/596), arts. 1, 6 29 In section 43(10), for the words “tutor or curator” substitute the word “guardian”. National Loans Act 1968 (c.13) 30 In section 14(5)(a), for the words from “of unsound” to “disability” substitute the words “under legal disability by reason of nonage or otherwise”. Social Work (Scotland) Act 1968 (c.49) 31 In section 16(11)(c), for the words “tutor or curator” substitute the word “guardian”. 32 In section 18(4), for the words “tutor or curator of an infant” substitute the words “guardian of a child”. Taxes Management Act 1970 (c.9) F24 33................................ Textual Amendments F24 (^) Sch. 1 para. 33 omitted (with effect in accordance with s. 222(5) of the commencing Act) by virtue of Finance Act 2012 (c. 14), s. 222(4)(b) F25 34................................
SCHEDULE 2 – REPEALS Document Generated: 2021-08- 13 Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details) “ 4 Power of parent to appoint guardian. “ 4 “ 4 Power of parent to appoint guardian. The parent of a child may appoint any person to be guardian of the child after his death, but any such appointment shall be of no effect unless— (a) the appointment is in writing and signed by the parent; and (b) the parent at the time of his death was guardian of the child or would have been such guardian if he had survived until after the birth of the child.” 42 In section 6(2), for the words “pupil child” substitute the words “child under the age of 16 years”; and for the word “tutor” substitute the word “guardian”. 43 In section 8, in paragraph (a) of the definition of “child” after the words “in relation to” insert the word “guardianship,” and in paragraph (d) for the words from “custody” to “curatory” substitute the words “guardianship, custody or access”; and in the definition of “parental rights” for the words “tutory, curatory” substitute the word “guardianship”. Family Law Act 1986 (c.55) 44 In section 1(1)(b)(ix), for the words “tutory or curatory” substitute the word “guardianship”. 45 In section 16, in subsections (1) and (4) for the words “tutory or curatory” substitute the word “guardianship” and for the words “pupil or minor” substitute the word “child”; and in subsection (2) for the words “factor loco tutoris” substitute the words “judicial factor”. 46 In section 18(2), for the words “tutory or curatory of a pupil or minor” substitute the words “guardianship of a child”. 47 In section 35(4)(b), for the words “tutor or curator” substitute the word “guardian”. Income and Corporation Taxes Act 1988 (c.1) F28 48................................ Textual Amendments F28 Sch. 1 para. 48 repealed (1.5.1995 with effect for the year 1995-96 and subsequent years of assessment) by 1995 c. 4, s. 162, Sch. 29 Pt. VIII(8) SCHEDULE 2 Section 10. REPEALS Chapter Short title Extent of repeal 1474 c. 6. The Tutors Act 1474. The whole Act.
SCHEDULE 2 – REPEALS Document Generated: 2021-08- Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details) 1672 c. 2. The Tutors and Curators Act
The whole Act. 1681 c. 85. The Oaths of Minors Act
The whole Act. 1696 c. 8. The Tutors and Curators Act
The whole Act. 12 & 13 Vict. c. 51. The Judicial Factors Act
In section 1, the words “factor loco tutoris”, “to any pupil” where first occurring and “pupil or” where second occurring.In section 25(1), the words “to any pupil” where first occurring and “pupil or” where second occurring.In section 26, the words “to a pupil” and “pupils or”.Section 30.In section 31, the words “loco tutoris”. 31 & 32 Vict. c.101. The Titles to Land Consolidation (Scotland) Act
In section 3, the words “factors loco tutoris”.In section 119, the words “whether of full age or in pupillarity or minority, or”.In section 121, the words “in pupillarity or minority or”.Section 139. 43 & 44 Vict. c. 4. The Judicial Factors (Scotland) Act 1880. In section 3, the words “a factor loco tutoris”. 52 & 53 Vict. c. 39. The Judicial Factors (Scotland) Act 1889. Section 11. 55 & 56 Vict. c. 4. The Betting and Loans (Infants) Act 1892. The whole Act. 23 & 24 Geo.5 c. 41. The Administration of Justice (Scotland) Act 1933. Section 12. 12, 13 & 14 Geo.6 c.75. The Agricultural Holdings (Scotland) Act 1949. In section 84, the words “a pupil or a minor or is”. 9 & 10 Eliz.2 c. 57. The Trusts (Scotland) Act
In section 1, in subsection (2) the words “(whether acting with the concurrence of a curator, administrator-at-law, or other guardian or not)” and subsection (3). 1964 c. 41. The Succession (Scotland) Act 1964. Section 28.
SCHEDULE 2 – REPEALS Document Generated: 2021-08- Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act 1991. (See end of Document for details) paragraph (2) the words from “and for” to the end, and in sub-paragraph (6) the words from “for the words” where first occurring to “and”; and paragraphs 11, 12, 14(1)(b) and 20(b). 1986 c. 33. The Disabled Persons (Services, Consultation and Representation) Act 1986. In section 16, in paragraph (b) of the definition of “guardian” the words “tutor, curator or”.
Document Generated: 2021-08- 17 Changes to legislation: There are currently no known outstanding effects for the Age of Legal Capacity (Scotland) Act
