Legal Articles

There is a misconception that a Trustee of a Trust must be a fully qualified professional. While there can be nothing further from the truth, it is understandable why this misconception is alive.

Despite not always being the case, there is no doubt that a professional in a certain field stands better chance to execute duties and responsibilities over an individual who is not particularly qualified in that area.

Who Can be a Trustee of a Trust in South Africa?

There is absolutely no requirement at law that a Trustee must be a professional, but that such person must be a major and have an appreciation of what is expected of them, the duties they are accepting and capacity to discharge such responsibilities.

The Trust Deed makes provision of what is expected of the Trustees, and this guides them on what their duties and the extent of their authority is. The Trust Deed in itself may also provide for who may or may not be a Trustee of that particular Trust.

The Trust Property Control Act 57 of 1988 lists categories of persons whose status disqualifies them from continuing in the position of Trustee such as;

• Persons convicted of offenses where dishonesty is an element, or convicted and sentenced without the option of a fine;
• Persons declared insolvent and unrehabilitated;
• Persons declared mentally incapable nor can manage their own affairs;
• Persons who cannot comply with a lawful directive by the Master or the law in the running of the Trust

Trustees are expected to discharge their duties in the best interests of the Trust and the beneficiaries. They ought to conduct themselves in the performance of their duties with care, diligence, skill, honesty, and truth.

Owing to decided cases in our Courts e.g Land Bank case, most master’s require at least one independent Trustee where the Trustees and Beneficiaries are the same and related. This inculcates some independence to inspire confidence in the creditors of the Trust and SARS.

Another important aspect worth noting is with respect to Trustees registered as such from a foreign jurisdiction, with the Trust in question being registered in such foreign jurisdiction as well. Where such Trustee intends to participate in a transaction involving assets in South Africa, they must apply for authorisation from the Master of the High Court.

Van Deventer & Van Deventer Incorporated – Estate Planning Attorneys in South Africa

Our astute Trust attorneys strongly advise parties to consult with us for comprehensive assistance with regards to Trust matters. We advise Trust Founders, Trustees, Beneficiaries and any third parties with interest in a Trust. We also assist in the formulation and compilation of Trust Deeds that have adequate provisions to cater for various situations.

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