Hamilton and Another v Badenhorst and Others (5348/2017) [2018] ZAFSHC 33 (29 March 2018)

Hamilton and Another v Badenhorst and Others (5348/2017) [2018] ZAFSHC 33 (29 March 2018)

The court found that the applicants failed to establish the essential elements for the formation of a valid inter vivos trust, as there was no consensus among the contracting parties, and key parties were either deceased, unwilling, or incapable of acting as trustees. The trust did not exist at the time of the testator's death, and therefore could not be a beneficiary under the will. The distinction between an inter vivos trust and a testamentary trust is fundamental, and the applicants' attempt to treat them as equivalent was legally flawed. The cy-près doctrine and ad pias causa principle were inapplicable, as the bequest was not for charitable purposes. Consequently, the relief sought...

Citation
[2018] ZAFSHC 33
Parties
Applicant: Jannie Hamilton; Applicant: Jan Petrus Hamilton; Respondent: Engela Helena Badenhorst; Respondent: Hester Johanna Scheepers (ex) Badenhorst; Respondent: The Master of the High Court, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 March 2018
Case Number
5348/2017
Procedural Posture
Civil Application / Final Judgment
Outcome
Application dismissed with costs.
Judges
Rampai
Legal Topics
Trust Creation, Testamentary Disposition, Capacity to Contract, Wills Act Compliance, Beneficiary Existence
Civil Procedure Land and Property Trust Creation Testamentary Disposition Capacity to Contract Wills Act Compliance Beneficiary Existence

Case Brief

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Parties

Jannie Hamilton

Applicant

Jan Petrus Hamilton

Applicant

Engela Helena Badenhorst

Respondent

Hester Johanna Scheepers (ex) Badenhorst

Respondent

The Master of the High Court, Bloemfontein

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the draft trust deed (Eben-Haeser Trust) can be declared valid and registered posthumously.
  2. 2 Whether the deceased's last will and testament validly bequeaths immovable property to a non-existent inter vivos trust.
  3. 3 Whether the applicants have established the essential elements for the formation of a valid inter vivos trust.

Ratio Decidendi

The court found that the applicants failed to establish the essential elements for the formation of a valid inter vivos trust, as there was no consensus among the contracting parties, and key parties were either deceased, unwilling, or incapable of acting as trustees. The trust did not exist at the time of the testator's death, and therefore could not be a beneficiary under the will. The distinction between an inter vivos trust and a testamentary trust is fundamental, and the applicants' attempt to treat them as equivalent was legally flawed. The cy-près doctrine and ad pias causa principle were inapplicable, as the bequest was not for charitable purposes. Consequently, the relief sought...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicants are directed to pay the costs of the respondents, including the costs consequent upon employment of two counsels.