In a recent judgment by the Free State Provincial Division of the High Court of South Africa it was decided that a trustee who resigns is only relieved from his duties when his name is removed from the letter of authority by the Master of the High Court. This judgment has caused many questions to be raised regarding the implications of the resignation by a trustee. This judgment and the current legal position of the resigning trustee are investigated in this dissertation. The legal position of the resigning trustee seems to be uncertain, and the mentioned judgment should not be unreservedly accepted as correct. The role and responsibility of the Master of the High Court in this process is considered, as well as the legal position of the resigning trustee, the remaining trustees and third parties contracting with the trust. Certain conclusions are drawn and recommendations are made regarding this aspect of South African trust law. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2009.

In a recent judgment by the Free State Provincial Division of the High Court of South Africa it was decided that a trustee who resigns is only relieved from his duties when his name is removed from the letter of authority by the Master of the High Court. This judgment has caused many questions to be raised regarding the implications of the resignation by a trustee. This judgment and the current legal position of the resigning trustee are investigated in this dissertation. The legal position of the resigning trustee seems to be uncertain, and the mentioned judgment should not be unreservedly accepted as correct. The role and responsibility of the Master of the High Court in this process is considered, as well as the legal position of the resigning trustee, the remaining trustees and third parties contracting with the trust. Certain conclusions are drawn and recommendations are made regarding this aspect of South African trust law. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2009.

Doctor Legum - LLD / More than twenty years have passed since the Trust Property Control Act 57 of 1988 came into operation. Although the Act provided context, clarity and regulation in certain areas of trust law, it is apparent that there exists a pressing need to develop statutorily the law of trusts more extensively. To this end, the research has a dual objective: Firstly, to identify those areas of South African trust law that are not currently regulated statutorily but for which, by reason of extensive and, at times, controversial jurisprudential development, such regulation is now essential. Secondly, to analyse critically the Trust Property Control Act in its current form in order to determine the utility of its provisions, particularly in light of jurisprudential development since the Act’s commencement. The purpose of the study is to formulate comprehensive recommendations for legislative reform in the area of South African trust law.

La thèse qui a été préparée dans le cadre d’une cotutelle est consacrée à la fiducie-sûreté au sens des articles 2011 et s. du Code civil. Elle est rédigée en langue allemande et comporte un résumé en français. La thèse présente le sujet d’un point de vue comparatif. Après un bref aperçu introductif de la fiducie-sûreté, la thèse aborde les questions de la propriété fiduciaire et du patrimoine fiduciaire. Elle examine la question de savoir si la fiducie-sûreté se présente comme une sûreté accessoire à la créance garantie. Le dénouement de la fiducie-sûreté ainsi que les formalités de l’enregistrement et de publicité qui doivent être respectées font l’objet des développements dans les chapitres suivants. Les effets d’une procédure collective sur la fiducie-sûreté sont examinés de manière détaillée. La thèse conclut avec un résumé des résultats les plus importants soulignant les forces et les faiblesses majeures de la fiducie-sûreté. / The present thesis is dedicated to the fiducie-sûreté – the security trust in terms of articles 2011 et seqq. of the French Civil Code. The study is written in German and comprises an abstract in French. The author discusses the fiducie-sûreté from a comparative perspective. After providing a short overview of the fiducie-sûreté, the study deals with the questions related to the propriété fiduciaire and the patrimoine fiduciaire. It examines whether the fiducie-sûreté is accessory to the claim secured by this security right. In the following chapters, the work sheds light on the phase of termination of the fiducie-sûreté as well as on the measures of registration and publication which have to be observed. The work then explores the impact of insolvency proceedings on the fiducie-sûreté in its different aspects. The study concludes with a summary of its most important results underlining the strengths and weaknesses of the fiducie-sûreté.

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 in the deed of trust. In order to make any meaningful conclusions, the different types of trusts, and more specific the way in which trusts are classified, needs to be researched. An inter vivos trust is classified as a contract for the sake of a third. Consequently contract law rules are applied in the interpretation and amendment of an inter vivos trust. The source, goal and tenor of a trustee‟s discretion, as well as the circumstances wherein this discretion may be amended, are investigated. The general rule is that courts have no discretion to amend a trust, but there is an exception to the rule. In accordance with article 13 of the Trust Property Control Act 57 of 1988 courts do have the power to amend or cancel the deed of trust in certain circumstances. In Potgieter and Another v Potgieter NO and Others 2012 (1) SA 637 (HHA) the court ruled that the power granted by article 13 does not enable judges to create law by amendment of the deed of trust according to their subjective interpretation of what is fair and just. The facts of the Potgieter case serve as problem statement for this study by focusing on the problems and unjust consequences of the strict application of contract law rules on a trust when the court does not take the changing circumstances of the trust founder into account. / LLM (Estate Law), North-West University, Potchefstroom Campus, 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 in the deed of trust. In order to make any meaningful conclusions, the different types of trusts, and more specific the way in which trusts are classified, needs to be researched. An inter vivos trust is classified as a contract for the sake of a third. Consequently contract law rules are applied in the interpretation and amendment of an inter vivos trust. The source, goal and tenor of a trustee‟s discretion, as well as the circumstances wherein this discretion may be amended, are investigated. The general rule is that courts have no discretion to amend a trust, but there is an exception to the rule. In accordance with article 13 of the Trust Property Control Act 57 of 1988 courts do have the power to amend or cancel the deed of trust in certain circumstances. In Potgieter and Another v Potgieter NO and Others 2012 (1) SA 637 (HHA) the court ruled that the power granted by article 13 does not enable judges to create law by amendment of the deed of trust according to their subjective interpretation of what is fair and just. The facts of the Potgieter case serve as problem statement for this study by focusing on the problems and unjust consequences of the strict application of contract law rules on a trust when the court does not take the changing circumstances of the trust founder into account. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2014

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