Die nudum praeceptum in die Suid-Afrikaanse reg

Abstract

The nudum praeceptum in South African law It has become relatively common practice for testators and the settlors of trusts to give someone the ownership of property or an immediate right to the capital of the property (usually immovable property) and then to proceed to impose restrictions on the use of same by the heir or beneficiary, for example a prohibition on alienation. Such a restriction imposed purely in the interests of the beneficiary does not bind him and it termed a nude prohibition (nudum praeceptum). In the Roman and Roman-Dutch law a provision was termed "nude" if it is based on no apparent reason and when those persons in whose favour the prohibition is made are not specified. A prohibition on alienation simpliciter or one which otherwise lacks the requirements of a valid fideicommissum is of no force or effect and regarded as pro non scripto. It is indeed only by way of a fideicommissum that such a prohibition can validly be imposed. Testators and the settlors of trusts frequently endeavour by way of so-called "forfeiture" clauses to protect the benefit accruing to a beneficiary against his creditors or the trustee of his insolvent estate. Protective discretionary trusts which are intended to protect a beneficiary against himself in the event of the beneficiary's insolvency, the attachment of his property or some similar financial misfortune may validly be created by directing the trustee to devote the interest or capital of the trust property in such a way that he can validly carry out the trust because the insolvent beneficiary cannot assert a right to any part of the trust property and the trustee is placed under a definite obligation to give effect to the trust. It is essential that the trust beneficiaries should not be limited to the insolvent to obtain this position. If the principles of the nudum praeceptum are applied to the "bewindtrust" it may have a right of existence but the use thereof is limited. The "bewindtrust" has feasibility regarding minor beneficiaries and may continue until they attain majority. It can also be applied in the form of an investment trust. In view of the above, estate planners and drafters of wills and trust deeds should have due regard to the legal principles underlying the nudum praeceptum and its practical effects in particular circumstances.