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South Africa decisions
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Noome and Others v Botha N.O. and Others (4405/2021) [2022] ZAFSHC 108 (23 May 2022)
The court held that trustees could not sell a farm specifically bequeathed in a will, declared the sale invalid, and ordered costs against the respondents.
B.R.R v M.B.J and Others (2020/11552) [2021] ZAGPJHC 396; [2021] 4 All SA 383 (GJ) (30 June 2021)
The High Court dismissed an application to increase trust maintenance, declare children capital beneficiaries, and remove trustees of a testamentary trust.
Louw and Others v Absa Trust Limited and Others (19085/2007) [2014] ZAWCHC 159 (28 October 2014)
The High Court dismissed a trust-breach claim, holding that Absa Trust was not the liable successor and that estoppel against it was not proved.
Kelly NO and Others v Kelly and Others (4334/10) [2011] ZAKZPHC 19 (11 May 2011)
The High Court rectified a will clause that mistakingly copied beneficiaries from a related trust deed, holding it did not reflect the testatrix’s true intention.
Ex parte: BOE Trust Ltd NO and Others (211/09) [2009] ZAWCHC 88; 2009 (6) SA 470 (WCC) (27 May 2009)
The court held that while freedom of testation is subject to public policy and constitutional values, not all differentiation between classes of beneficiaries is invalid. The testatrix executed her will in 2002, well after the constitutional dispensation, and was aware of the prevailing legal context. The applicants failed to establish that unforeseen circumstances justified intervention under section 13 of the Trust Property Control Act. The inability to implement the bursary bequest arose from the universities' refusal to participate, not from any unforeseen change in law or policy. The cou…
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Gross and Others v Pentz (414/95) [1996] ZASCA 78; 1996 (4) SA 617 (SCA); [1996] 4 All SA 63 (A); (22 August 1996)
The court considered whether a trust beneficiary could sue for breach of trust where a co-trustee did not institute proceedings, focusing on locus standi and the Beningfield exception.
H Holt Will Trust v Commissioner for Inland Revenue (131/91) [1992] ZASCA 135 (10 September 1992)
The Supreme Court of Appeal held that the surplus income and capital of the H Holt Will Trust vested in the ultimate charitable beneficiaries upon the death of the testatrix. The annuitant, Miss Walker, was found to have a usufructuary interest, not a fiduciary interest, and her entitlement to annuity and supplementation from capital did not postpone vesting in the charities. The will clearly contemplated a residue for distribution to the charities, and the absence of a condition of survivorship or other contingency meant that the charities acquired a vested right to the trust assets immediat…
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Horowitz v Brock (168/85) [1987] ZASCA 126; [1988] 2 All SA 15 (A) (5 November 1987)
The Supreme Court of Appeal held that the previous ruling of the Transvaal Provincial Division did not constitute res judicata or issue estoppel, as the issue of the proportions to which the beneficiaries were entitled was not made part of the order and was not fully canvassed as an issue between the parties. The court found sufficient indicia in the will to rebut the presumption that 'children' refers only to descendants of the first degree. The testators intended that Annie Brock's share in the trust corpus should devolve equally upon her surviving children and, by representation, upon the…
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Rein NO v Fleischer NO and Others (472/83) [1984] ZASCA 102; 1984 (4) SA 863 (18 September 1984)
The court held that a divorce consent paper promising future inheritance funds did not amount to anticipation or encumbrance under the will’s forfeiture clause.
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 court upheld a discretionary testamentary trust, but struck down a proviso allowing trustees to create a new trust with terms left to their discretion.
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