Trusts Archives - Ashersons Attorneys | Attorneys in Cape Town

02 Jul 2022

Trusts on divorce: Are you stuck with an ex-spouse as a trustee?

Trusts may be formed for a variety of reasons, and the purpose and structure of each trust will inform the choice of trustees. When it comes to families aiming to preserve and protect family assets for future generations, often both spouses are appointed not only as beneficiaries, but also as trustees. That’s a great scenario whilst the marriage prospers, but what happens on divorce? A recent High Court decision in PM N.O and Another v DM N.O and Another (26855/2021) [2022] ZAGPPHC 313 addressed one such scenario – ‘Not the Titanic’ – this marriage took six years to sink In…

04 Mar 2019

By Ashersons Attorneys

Trustees at War: The Removal Remedy and Its Limits

What happens when a trust’s trustees fall out and go to war with each other? If a polite request to the minority trustee to resign bears no fruit, can the majority forcibly remove him or her? And if so, must they have good reason to do so? The first question of course is what the founding trust deed provides for such a situation, but a recent High Court decision lays additional ground rules for trustees that anyone involved in a trust (in any capacity) should know about. The case saw a mother facing off against three professionals (two auditors and…

06 Jul 2017

By Ashersons Attorneys

Trusts: New Directive on Independent Trustees

If you plan to form a trust, you need to know about a new directive from the Chief Master of the High Court to all Master’s Offices in the country. The directive applies to all new trusts (those “registered for the first time”) by the Master. Following a series of court cases in which the “trust form” was held to have been abused by the trustees (often in the form of trustees treating trust assets as their own), and in particular a 2004 Supreme Court of Appeal decision suggesting the appointment of independent outsiders as trustees in certain family trusts,…

01 Jun 2017

By Mame Amoateng

Will your antenuptial contract protect trust assets on divorce?

A recent Supreme Court of Appeal (SCA) decision (M v M (332/2015) [2016] ZASCA 5) illustrates once again how essential it is, before getting married, to have your lawyer structure your antenuptial contract (ANC) correctly, and with as much detail as is needed for certainty. A multi-million Rand fight over trust assets A divorcing couple had married and divorced three times. They had in respect of the latest divorce been married out of community of property with the accrual system, so each was in principle entitled to 50% of all “accrual” (growth) in their estates after marriage, except as specifically excluded from…

13 Oct 2016

By Andrew Goldschmidt

Tax changes affecting Trusts: Interest-free or low-interest loans to trusts

The South African National Treasury (“Treasury”) is moving forwards with their promises to tighten up the income tax laws which are applicable to trusts. In July 2016, Treasury released the Draft Taxation Laws Amendment Bill (“Draft TLAB”) which introduced a new section 7C into the Income Tax Act, 1962 which applies directly to trusts which are used as investment vehicles. Trusts - the structure Trusts are often used as an investment vehicle to hold immovable property. There are a number of benefits to this, including, removing the property from your estate beyond the reach of creditors and reducing your estate’s…

26 Apr 2016

By Ashersons Attorneys

Property and trusts – be careful!

For most of us, business dealings with trusts are most likely to happen when selling a property to, or buying a property from, a trust. But no matter why or how it happens, have your lawyer check that whoever signs for the trust is fully authorised to do so. For want of authority, the case is lost If you don't ascertain up front that the person signing the agreement on behalf of the trust is properly authorised, you could be in for a major shock if you come to blows and need to ask a court for assistance. The recent case…