Legal Articles

The essence behind a Trust is the transfer of ownership of property from the Trust Founder to the Trust, while putting its control under the Trustees, for the advantage of the beneficiaries. The duties and responsibilities of the Trustees are fiduciary in nature and as such they must perform them with good faith, honesty, diligence, skill and uphold the best interests of the Trust and its beneficiaries.

In so far as a Trustee fails to conduct themselves as per the above in the performance of their duties, it may result in them being removed as a Trustee. In the event that such is the case, this article will discuss in brief the ways in which a Trustee may be removed from their position.

Removing a Trustee from a Trust

Firstly, and perhaps the simplest way, is to ask the Trustee to resign from their position. It is not always the best of options to rush to the Courts before attempting to resolve disputes internally and between the parties. Sometimes the cause of the dispute is so glaring that the breaching party will see no benefit in being dragged to Court to cure the breach and may under such circumstances agree to resign without putting up a fight. Court battles come at a premium, may drag for months or years depending on the case and sometimes an unexpected result will have to be contended with subsequently.  

Secondly and in the event that the breaching Trustee does not take the option to resign, provisions of the Trust Property Control Act 57 of 1988 (the Act) provide that:

Section 20 (1)

• A Trustee may on application of the Master or any person having interest in the Trust Property, at any time be removed from his office by the Court if the Court is satisfied that his removal will be in the interests of the Trust and its beneficiaries.
• In the case of Fletcher v McNair (2020) ZASCA 135 the Court upheld the removal of one of the Trustees in a family Trust, upon a High Court application by Mrs McNair who is the Respondent in the ZASCA appeal. In the case above as well as in Konstantinos v Van Lingen And Others (2021) JOL 49289 (SCA) the below principles were confirmed, as part of the Courts’ determination on the removal of a Trustee;
• In the event that the removal of a Trustee is in the best interest of the Trust and the beneficiaries, the Court may order such Trustee’s removal as per Section 20 of the Act;
• The Court’s power to remove a Trustee must be exercised with circumspection;
• The interests of the Estate must be weighed against the reason for removal, as it will qualify the adequacy of the reason;
• Respect and effect of the deceased’s (Trust Founder) nomination of preferred Trustees, must be given effect to and not easily interfered with;
• “Where there is disharmony, the essential test is whether it imperils the Trust estate or its roper administration” ;
• Simple disagreements between the Trustee and beneficiaries are not adequate grounds alone to remove a Trustee;
• “Neither mala fides nor misconduct are required for the removal of the Trustee” ;
• Where a Trustee did not take correct decisions or strictly adhere to the law, are not sufficient to warrant the removal of a Trustee on that alone;
• The essential premise is the consideration of the welfare of the beneficiaries and the proper administration of the Trust and its property.

Thirdly, a Trust Deed should provide for a process and procedure on how a Trustee may be removed from their position. Our Trust Department attorneys are on firm ground to assist in the formulation and compilation of a Trust Deed with sufficient provisions that cater for situations like these.

Having a Trust Deed with such provisions in place will ensure that there is certainty around the process to follow when any party having an interest in the Trust property intends to request the removal of a Trustee. A requisition will then have to be made to the Master of the High Court to note the necessary changes on the composition of the Trustees.

Van Deventer & Van Deventer Incorporated – Attorneys South Africa

We assist with Trust matters in various aspects. Being a sophisticated area of law, we strongly advise Trust Founders, Trustees, Beneficiaries and other parties having an interest in Trust property to consult with us pertaining to enforcing rights and guidance on Trust issues. We also assist in the formulation and compilation of Trust Deeds that have adequate provisions to cater for various situations.

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