Nel and Another v van den Heever N.O. and Others (2120/2015) [2016] ZAFSHC 66 (21 April 2016)

Nel and Another v van den Heever N.O. and Others (2120/2015) [2016] ZAFSHC 66 (21 April 2016)

The court found that the trust deed did not permit the testator to designate income beneficiaries by testamentary provision, and thus clause 2.8.2 of the will was ineffective. The trustees must designate income beneficiaries in accordance with the trust deed. The court held that Mr Heyns fabricated livestock records and, together with Ms van den Heever, produced a false meeting minute, amounting to serious dishonesty and breach of trustee duties. Furthermore, Ms van den Heever, in a material conflict of interest between the estate and the trust, unequivocally favoured the estate, failing to pursue a reasonable claim for 60 cattle owed to the trust. These actions justified the removal of...

Citation
[2016] ZAFSHC 66
Parties
Applicant: Charmaine Nel; Applicant: Charmaine Nel N.O.; Respondent: Cecilia van den Heever N.O.; Respondent: Theo van den Heever; Respondent: Hannes van den Heever; Respondent: Japie De Clerk; Respondent: Jan-Dirk Heyns; Respondent: Andrè Nel; Respondent: Meester van die Hoë Hof
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
21 April 2016
Case Number
2120/2015
Procedural Posture
Review Application / Judgment
Outcome
Application partially granted: Ms van den Heever and Mr Heyns are removed as trustees of the Charmaine van den Heever Trust; rectification of the will is ordered; removal of Ms van den Heever as executrix is refused; no costs order.
Judges
Van der Merwe, R
Legal Topics
Trustee Removal, Rectification of Testament, Conflict of Interest, Trust Beneficiaries, Liquidation and Distribution Account
Land and Property Civil Procedure Trustee Removal Rectification of Testament Conflict of Interest Trust Beneficiaries Liquidation and Distribution Account

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Parties

Charmaine Nel

Applicant

Charmaine Nel N.O.

Applicant

Cecilia van den Heever N.O.

Respondent

Theo van den Heever

Respondent

Hannes van den Heever

Respondent

Japie De Clerk

Respondent

Jan-Dirk Heyns

Respondent

Andrè Nel

Respondent

Meester van die Hoë Hof

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the removal of Ms van den Heever and Mr Heyns as trustees of the Charmaine van den Heever Trust is justified on grounds of refusal to recognise Ms Nel and her relatives as sole income beneficiaries, dishonest misrepresentation regarding trust livestock records and meeting minutes, or failure to claim 60 cattle from the estate for the trust.
  2. 2 Whether Ms van den Heever's position that the dairy herd is not an estate asset justifies her removal as executrix of the estate.

Ratio Decidendi

The court found that the trust deed did not permit the testator to designate income beneficiaries by testamentary provision, and thus clause 2.8.2 of the will was ineffective. The trustees must designate income beneficiaries in accordance with the trust deed. The court held that Mr Heyns fabricated livestock records and, together with Ms van den Heever, produced a false meeting minute, amounting to serious dishonesty and breach of trustee duties. Furthermore, Ms van den Heever, in a material conflict of interest between the estate and the trust, unequivocally favoured the estate, failing to pursue a reasonable claim for 60 cattle owed to the trust. These actions justified the removal of...

Court Disposition

Application partially granted: Ms van den Heever and Mr Heyns are removed as trustees of the Charmaine van den Heever Trust; rectification of the will is ordered; removal of Ms van den Heever as executrix is refused; no costs order.

Orders

  • The will of the late Johannes Stephanus van den Heever and Cecilia van den Heever dated 30 November 2012 is rectified by deleting 'Ulundi BK' in clause 2.2.1 and substituting 'U 510 BK'.
  • The fourth and twentieth respondents are removed as trustees of the Charmaine van den Heever Trust (IT 141/2002).