Van Greune NO ans Another v Van Greune In re: Van Greune v Van Greune and Others (57674/2012) [2013] ZAGPPHC 291 (14 October 2013)

Van Greune NO ans Another v Van Greune In re: Van Greune v Van Greune and Others (57674/2012) [2013] ZAGPPHC 291 (14 October 2013)

The court held that it does not have jurisdiction in divorce proceedings to declare that the assets and liabilities of a trust no longer belong to the trust or to amend the trust deed by way of declaratory order. The prayers sought by the plaintiff effectively requested the termination or invalidation of the trust, which is not permissible at common law except in limited circumstances to avoid frustrating the trust object or prejudicing beneficiaries. The plaintiff, as a trustee and party to the trust deed, cannot seek relief contrary to the trust instrument, and the court cannot pierce the trust's veil outside the statutory framework of the Divorce Act. Accordingly, the exception was...

Citation
[2013] ZAGPPHC 291
Parties
Applicant: Frederik Wilhelmus Van Greune N.O.; Applicant: Christoffel Louis Oosthuizen; Respondent: Anna Susanna Van Greune; Plaintiff: Anna Susanna Van Greune; Defendant: Frederik Wilhelmus Van Greune; Defendant: Frederik Wilhelmus Van Greune N.O.; Defendant: Anna Susanna Van Greune N.O.; Defendant: Christoffel Louis Oosthuizen; Defendant: Master of the High Court, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 October 2013
Case Number
57674/2012
Procedural Posture
Civil Procedure / Exception to Summons in Divorce Proceedings
Outcome
Exception upheld with costs; prayers seeking to declare trust assets as part of the joint estate struck out.
Judges
Potterill
Legal Topics
Trusts in Divorce, Piercing Trust Veil, Fiduciary Duty, Declaratory Orders
Civil Procedure Family and Children Trusts in Divorce Piercing Trust Veil Fiduciary Duty Declaratory Orders

Case Brief

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Parties

Frederik Wilhelmus Van Greune N.O.

Applicant

Christoffel Louis Oosthuizen

Applicant

Anna Susanna Van Greune

Respondent

Anna Susanna Van Greune

Plaintiff

Frederik Wilhelmus Van Greune

Defendant

Frederik Wilhelmus Van Greune N.O.

Defendant

Anna Susanna Van Greune N.O.

Defendant

Christoffel Louis Oosthuizen

Defendant

Master of the High Court, Pretoria

Defendant

Procedural Posture

Civil Procedure / Exception to Summons in Divorce Proceedings

Legal Issues

  1. 1 Whether the summons discloses a valid cause of action against the trustees of the Fremar Trust.
  2. 2 Whether a trustee can seek a declaratory order that the trust is the alter ego of a party to divorce proceedings.
  3. 3 Whether the court has jurisdiction to declare trust assets as part of the joint estate in divorce proceedings.

Ratio Decidendi

The court held that it does not have jurisdiction in divorce proceedings to declare that the assets and liabilities of a trust no longer belong to the trust or to amend the trust deed by way of declaratory order. The prayers sought by the plaintiff effectively requested the termination or invalidation of the trust, which is not permissible at common law except in limited circumstances to avoid frustrating the trust object or prejudicing beneficiaries. The plaintiff, as a trustee and party to the trust deed, cannot seek relief contrary to the trust instrument, and the court cannot pierce the trust's veil outside the statutory framework of the Divorce Act. Accordingly, the exception was...

Court Disposition

Exception upheld with costs; prayers seeking to declare trust assets as part of the joint estate struck out.

Orders

  • Prayer B of the summons is struck out.
  • Paragraph 9 and its subsections of the summons are struck out.