Egerer and Others v Executrust (Pty) Ltd and Others (SA 42 of 2016) [2018] NASC 5 (6 February 2018)

Egerer and Others v Executrust (Pty) Ltd and Others (SA 42 of 2016) [2018] NASC 5 (6 February 2018)

The trust deed empowered the founder to appoint additional trustees in his will, not limited to filling a vacancy. However, the special bequests to non-beneficiaries from trust capital after vesting were ultra vires the trust deed and unenforceable, as the founder had divested control over trust assets. Costs are to be borne by the estate, given the nature of the dispute and the centrality of the estate.

Citation
[2018] NASC 5
Parties
First Appellant: Lucia Wilhelmine Getrud Egerer; Second Appellant: Manfred Egerer; Third Appellant: Manfred Egerer N.O.; First Respondent: Executrust (Pty) Ltd; Second Respondent: Alwyn Petrus Van Straten; Third Respondent: Sarah Susan Elizabeth Stahl; Fourth Respondent: The Master of the High Court of Namibia; Fifth Respondent: Liezel Louwrens; Sixth Respondent: Vincent Edwin Hole; Seventh Respondent: Mathilde Apollonia Christiana Kautorora
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
6 February 2018
Case Number
SA 42 of 2016
Procedural Posture
Civil Appeal / Supreme Court Judgment
Outcome
Appeal allowed in part; cross-appeal dismissed
Legal Topics
Interpretation of Trust Deeds, Testamentary Powers, Appointment of Trustees, Ultra Vires Acts, Special Bequests, Costs Orders
Source Language
English
Trust Law Succession Law Interpretation of Trust Deeds Testamentary Powers Appointment of Trustees Ultra Vires Acts Special Bequests Costs Orders

Case Brief

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Parties

Lucia Wilhelmine Getrud Egerer

First Appellant

Manfred Egerer

Second Appellant

Manfred Egerer N.O.

Third Appellant

Executrust (Pty) Ltd

First Respondent

Alwyn Petrus Van Straten

Second Respondent

Sarah Susan Elizabeth Stahl

Third Respondent

The Master of the High Court of Namibia

Fourth Respondent

Liezel Louwrens

Fifth Respondent

Vincent Edwin Hole

Sixth Respondent

Mathilde Apollonia Christiana Kautorora

Seventh Respondent

Procedural Posture

Civil Appeal / Supreme Court Judgment

Legal Issues

  1. 1 Whether the founder of a trust may appoint additional trustees in his will under the trust deed
  2. 2 Whether special bequests to non-beneficiaries from trust capital are valid under the trust deed
  3. 3 Whether costs should be borne by the estate not formally cited as a party

Ratio Decidendi

The trust deed empowered the founder to appoint additional trustees in his will, not limited to filling a vacancy. However, the special bequests to non-beneficiaries from trust capital after vesting were ultra vires the trust deed and unenforceable, as the founder had divested control over trust assets. Costs are to be borne by the estate, given the nature of the dispute and the centrality of the estate.

Court Disposition

Appeal allowed in part; cross-appeal dismissed

Orders

  • Prayers 1 and 2 of the notice of motion dismissed.
  • Prayer 3 of the notice of motion allowed: clauses 2.9.1, 2.9.2, and 2.9.3 of the will and the special bequests therein are invalid, of no force and effect, and unenforceable.