Braun and Another v Botha and Another (263/82) [1984] ZASCA 19; [1984] 2 All SA 197 (D) ; 1984 (2) SA 850 (A) (22 March 1984)

Braun and Another v Botha and Another (263/82) [1984] ZASCA 19; [1984] 2 All SA 197 (D) ; 1984 (2) SA 850 (A) (22 March 1984)

The Supreme Court of Appeal held that clause 4 of the testatrix's will, which creates a discretionary trust and confers powers of appointment on the administrators to select income and capital beneficiaries from a designated group, is valid under South African law. The Court reasoned that the law recognizes the validity of such powers of appointment, provided they do not amount to a delegation of will-making power. The proviso to clause 4(d), which empowers the administrators to create a new trust and determine its terms and trustees, was found to be an impermissible delegation of will-making power and therefore invalid. However, this invalidity does not affect the remainder of clause 4,...

Citation
[1984] ZASCA 19
Parties
Appellant: Helen Vilma Braun; Respondent: Basil Edward John Blann; Respondent: Frederick Christian George Botha; Respondent: The Master of the Supreme Court
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 March 1984
Case Number
263/82
Procedural Posture
Civil Appeal / Appeal From Witwatersrand Local Division Judgment
Outcome
Appeal dismissed. The testamentary trust created by clause 4 is valid except for the proviso to clause 4(d), which is declared invalid.
Judges
Rabie, Joubert, Viljoen, Van Heerden, Grosskopf
Legal Topics
Testamentary Trusts, Powers of Appointment, Delegation of Will Making Power, Severability of Invalid Clauses
Family and Children Land and Property Testamentary Trusts Powers of Appointment Delegation of Will Making Power Severability of Invalid Clauses

Case Brief

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Parties

Helen Vilma Braun

Appellant

Basil Edward John Blann

Respondent

Frederick Christian George Botha

Respondent

The Master of the Supreme Court

Respondent

Procedural Posture

Civil Appeal / Appeal From Witwatersrand Local Division Judgment

Legal Issues

  1. 1 Whether clause 4 of the testatrix's will, creating a discretionary trust, is invalid under South African law.
  2. 2 Whether the conferment of discretionary powers of appointment on trustees without beneficial interest is permissible.
  3. 3 Whether the proviso to clause 4(d) constitutes an impermissible delegation of will-making power.

Ratio Decidendi

The Supreme Court of Appeal held that clause 4 of the testatrix's will, which creates a discretionary trust and confers powers of appointment on the administrators to select income and capital beneficiaries from a designated group, is valid under South African law. The Court reasoned that the law recognizes the validity of such powers of appointment, provided they do not amount to a delegation of will-making power. The proviso to clause 4(d), which empowers the administrators to create a new trust and determine its terms and trustees, was found to be an impermissible delegation of will-making power and therefore invalid. However, this invalidity does not affect the remainder of clause 4,...

Court Disposition

Appeal dismissed. The testamentary trust created by clause 4 is valid except for the proviso to clause 4(d), which is declared invalid.

Orders

  • The appeal is dismissed with costs, including costs of the curatrix ad litem and costs for two counsel for the First Respondents. If such costs cannot be recovered from the appellant, they are to be paid out of the estate of the testatrix.
  • The order of the court a quo is amended to declare the proviso to clause 4(d) of the will invalid.