As discussed in a previous article, there are many reasons why a trust deed may need to be amended. However doing so is not a simple or straight forward process.
The amendment of trust deeds can be approached in various ways.
Some common approaches include amending it in terms of the rules of the Law of Contract or in terms of the derived powers as highlighted in the trust deed itself.
The trust deed can also be amended through the application to court in terms of the Common Law or in terms of section 13 of the Trust Property Control Act, 57 of 1988.
In scenarios where the founder of the trust deed is still alive, then it can be amended through the powers afforded to the trustee in terms of the deed itself or in terms of the law of contract by which a later agreement between the founder and trustees amend substitute an earlier agreement between the same parties.
The original trustees who were party to the trust agreement are not needed, however all trustees have a duty to always act in the interest of the actual and potential beneficiaries.
This is generally the default method used as it brings along legal certainty.
Based on a recent decision by the Supreme Court of Appeal, where beneficiaries have accepted the benefits of the trust deed, then any amendment or variation to that agreement should only be conducted with their consent, in terms of the Law of Contract or in terms of the derived powers given in the trust deed itself.
It is important to check whether the beneficiaries who have accepted benefits, were present to any previous amendments made to the trust deed for them to be valid.
An unequivocal expression of intention to accept is needed, as well as communication of acceptance by the beneficiary to the trustees.
As is the case in many trustees, a trustee generally accepts the benefits on behalf of his minor children. When a trustee who also is a beneficiary signs any financial statements in which income or capital is distributed, this constitutes as acceptance of the amendment being made to the trust deed.
And so, it is highly important to establish if the beneficiaries have acquired any form of a right, and if they have accepted any of the benefits given to them, when considering the variation of the trust deed of an inter vivos trust.
If the founder of the trust is deceased, then beneficiaries are bound by the provisions of the trust deed.
And if there are no provisions made for the amendment of the trust deed after the death of the founder or if he became of unsound mind, then the trust deed can only be amended by way of an application to court.
One should be very careful to comply with the derived powers in the trust deed when amending a trust deed after the death of the founder.
This specifies that the administrative elements of the trust deed may be amended whilst the class of the beneficiaries may not.
If the trust deed specifies that it can be amended by agreement between the trustees and beneficiaries then the definition of the beneficiaries should be looked at carefully.
If the definition of income and/or capital beneficiaries includes “those persons related by blood or affinity” then the class of beneficiaries also include mother and father of a child, as well as the mother’s and father's blood relations and so all brothers, sisters, aunts, uncles, cousins, nephews and nieces can qualify as beneficiaries.
Any relations by way of affinity also includes all the ‘in-laws’ such as uncles, aunts, brothers, sisters, cousins, nieces and nephews.
All these people will have to be made a party to the amendment of the trust deed whether they have received benefits or not.
As is clearly seen, when amending a trust deed it is important to consult with a specialist of Trust Law so as to ensure that your trust deed is validly amended.
This helps to prevent any confusion or complications that arise from a lack of understanding of the terms of trust deed amendment.
Contact Van Deventer & Van Deventer Incorporated for assistance with making amendments to trusts.
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