The testamentary trust: is it a trust or a will? Hanekom v Voigt 2016 1 SA 416 (WCC)
MetadataShow full item record
The recent judgment in Hanekom v Voigt 2016 1 SA 416 (WCC) is evaluated in the light of the traditional understanding of the testamentary trust. It is evaluated from both a testamentary disposition and a trust law perspective, with the aim of determining whether the Hanekom matter has touched a particular nerve in the will versus trust debate as far as the trust mortis causa is concerned. From this judgment, the importance of differentiating between the spheres of testamentary law and trust law, to ensure legal certainty, became clear. The court submitted that the mere fact that a trust happens to be of testamentary origin should not influence the evaluation of the validity of the amendment of the trust instrument. The court underlined the dynamic nature of the trust figure in referring to it as a "supple, living institution." The nature of the powers vested in the Master of the High Court, both as far as the appraisal of the trust instrument and the appointment of trustees are concerned, is also considered in the judgement. In evaluating the facts of the case, the court recognised the applicability of the Oudekraal principle as it has been developed in the field of administrative law. The writer comes to the conclusion that, while the Hanekom case does illustrate some legal challenges in the last will and testament environment, it also offers a number of valuable lessons for will-drafters. The approach by the court is encouraging, as it shows some sensitivity for the true nature of the testamentary trust. The confirmation by the court that a testamentary trust is in the first instance a trust and not a will per se is to be welcomed, and is a true and realistic reflection of the nature of the institution.
- PER: 2018 Volume 21 
Showing items related by title, author, creator and subject.
Roos, Alta Carien (North-West University (South Africa), Potchefstroom Campus, 2016)With the promulgation of the National Water Act 36 of 1998, the South African water law changed dramatically. In order to restore the irregularities of the apartheid regime, the national government has been appointed to ...
Tack, Simoné (2014)This study focuses on the discretionary inter vivos trust. It specifically investigates what the discretion of a trustee comprises and in which circumstances (if any) the court may amend the trustee‟s discretion as stipulated ...
Heyns, M.M.; Jearey, A.D. (NWU School of Basic Sciences, 2013)Companies striving for a competitive edge need to have insight into factors that best promote innovativeness. Our quantitative study explored the relationship between subdimensions of interpersonal trust and innovativeness ...