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.
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)
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.
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.
The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.
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