No abstract available. / Thesis (LL.M.)-University of Natal, Durban, 1999.

Thesis (Ph.D.)--University of Wollongong, 2007. / Typescript. Includes bibliographical references: leaf 303-338.

Univ., Diss.--Saarbrücken, 2004. / Literaturverz. S. 295 - 312.

Thesis (Ph.D.) -- Mississippi State University. Department of Instructional Systems, Leadership and Workforce Development. / Title from title screen. Includes bibliographical references.

Thesis (Ph. D.)--Illinois State University, 2001. / Title from title page screen, viewed May 2, 2006. Dissertation Committee: Patricia Klass (chair), Edward Hines, David Strand, Susan Winchip. Includes bibliographical references (leaves 78-82) and abstract. Also available in print.

This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.

Elder financial abuse is an alarming problem in this era of aging population. Baby boomers are entering retirement with a higher life expectancy and more wealth than any generation before them. The combination of mental decline and substantial wealth renders many seniors vulnerable to overreach. Empirical studies suggest that financial abuse against seniors is hard to detect and likely prevalent. In private suits alleging elder financial abuse, courts often apply the mental capacity doctrine to avoid seemingly exploitative contracts, gifts and many other lifetime transactions. The formal rationales for avoidance are that the elderly party to the impugned transaction lacked mental capacity, and that the transaction was inequitable. Moreover, guardians and attorneys who manage property for the elderly may have perverse incentives to exploit their position. Presuming the worst from the property manager, courts and legislatures typically impose onerous fiduciary duties to minimize conflicts of interest and deter misconduct. Orthodox fiduciary law explicitly aims to overdeter. This Dissertation first argues that the mental capacity doctrine in prevailing American law is ill-suited for the era of aging population. In theory, the doctrine grants a mentally-incapable individual a power to choose whether to avoid her transactions. In reality, that power is usually exercised by a claimant who expects to inherit from the incapable individual. Prevailing doctrinal theories overlook the possibility that the claimant may seek to avoid a transaction to increase her expected inheritance rather than to advance the interests of the incapable individual. The mental capacity doctrine thus poses a heighted risk of avoiding transactions that actually benefited potentially incapable seniors and reflected their testamentary intent. This harms the welfare of many seniors by unduly limiting their ability to benefit their close relatives and friends, reward informal caregiving, and recruit their preferred caregivers. The mental capacity doctrine can nonetheless be reformulated to offer appropriate protection against elder financial abuse without undue intrusion into close families and personal relationships. In particular, when applied to transactions involving close relatives and friends, the doctrine should be narrow, determinate, and respectful of individual will and preferences. This Dissertation further argues that orthodox fiduciary law is too strict on most guardians and agents who manage property for the elderly. The problem is that mental or physical decline is common among seniors, but a lack of mental capacity typically stultifies the power to authorize a fiduciary to depart from adherence to strict fiduciary duty. By contrast, mentally-capable individuals are free to discharge those aspects of fiduciary law that they find intrusive and undesirable. In other words, while fiduciary law is mostly a default law when applied to capable individuals, it is a mandatory law when applied to elderly incapable individuals. Harming the welfare of many seniors, mandatory application of fiduciary law tends to stultify the pursuit of valuable other-regarding preferences in close families and personal relationships. Such strict and inflexible application further disregards the presence of intrinsic bonds and informal norms. To remedy these shortcomings, this Dissertation proposes a substituted-judgment defense to permit those departures from strict fiduciary law that the incapable individual would have authorized if she was mentally-capable. This defense should be made available to close relatives and friends but not to profit-driven professionals. To deter and sanction elder financial abuse by professional guardians and agents, this Dissertation also proposes reforms to harness their reputational concerns.

A research report submitted to the Faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation) / Trusts are not as desirable as they once were, and every year they seem to become less so. The reason for their increasing undesirability is the heavy tax burden they carry. / NG (2020)

M.S.

Thesis (LLD)--Stellenbosch University, 2014. / ENGLISH ABSTRACT: Trusts are used for a variety of purposes, both in South Africa and abroad. Like so many other entities, trusts often do not function only in one jurisdiction and may therefore be exposed to international double taxation. South Africa, like most other states, enters into bi-lateral double taxation treaties, to limit the effects of international double taxation. Most of these treaties are based on the OECD Model Tax Convention on Income and on Capital (the OECD MTC). The South African trust is a unique creature. It is not based on the dual ownership concept on which most common law trusts are based, yet, it is not a juristic person either. The question that this research aims to address is how South Africa will interpret and apply certain provisions of the OECD MTC to trusts. Although the South African position is investigated, it is compared to the positions of the United Kingdom, Canada and the Netherlands. The dissertation starts with an analysis of the trust law in each of the relevant states, followed by an overview of the taxation regime governing trusts (and the parties thereto) in each state. The status of double taxation treaties and their interpretation are examined before certain critical provisions of the OECD MTC are analysed to determine how South Africa will apply these provisions to trusts. Hence it is explored whether a trust will be regarded as a person, whether it may be a resident and a beneficial owner for purposes of the OECD MTC. Furthermore, possible solutions for conflicts of attribution in the application of double tax conventions to trusts are investigated. The dissertation concludes that South Africa will regard a trust as a person for purposes of the OECD MTC. Moreover, some types of trusts may be viewed as residents and as beneficial owners for purposes of the OECD MTC. The solution proposed in the OECD’s Partnership Report should be applied to resolve conflicts of attribution involving trusts. / AFRIKAANSE OPSOMMING: Trusts word vir ‘n groot verskeidenheid doeleindes gebruik, nie net in Suid-Afrika nie, maar ook in die buiteland. Net soos baie ander entiteite funksioneer trusts baie keer nie net in een jurisdiksie nie. Trusts word dus ook blootgestel aan internasionale dubbelbelasting. Soos die meeste ander state, sluit Suid-Afrika dubbelbelastingooreenkomste om die effek van internasionale dubbelbelasting te beperk. Die meeste van hierdie ooreenkomste is gebaseer op die OECD Model Tax Convention on Income and on Capital (die OECD MTC). Die Suid-Afrikaanse trust het ‘n unieke aard. Dit is nie gebaseer op die konsep van verdeelde eiendomsreg waarop die meeste gemeenregtelike trusts gebasseer is nie, maar tog is dit ook nie ‘n regspersoon nie. Die vraag wat hierdie navorsing probeer beantwoord is hoe Suid-Afrika sekere bepalings van die OECD MTC sal interpreteer en toepas op trusts. Alhoewel die Suid-Afrikaanse posisie ondersoek word, word dit deurgaans vergelyk met die posisie in die Verenigde Koningkryk, Kanada en Nederland. Die proefskrif begin met ‘n analise van die trustreg in elk van die betrokke state en word gevolg deur ‘n oorsig van die belastingstelsel wat trusts (en die partye daartoe) belas in elk van die state. Die status van dubbelbelastingooreenkomste en hul interpretasie word ondersoek voordat sekere kritiese bepalings van die OECD MTC geanaliseer word om vas te stel hoe Suid-Afrika hierdie bepalings sal toepas op trusts. Daar word dus ondersoek of ‘n trust beskou sal word as ‘n persoon, of dit ‘n inwoner en ‘n uiteindelik geregtigde kan wees vir doeleindes van die OECD MTC. Voorts word moontlike oplossings vir toerekeningskonflikte in die toepassing van dubbelbelastingooreenkomste op trusts, ondersoek. Die proefskrif kom tot die gevolgtrekking dat in Suid-Afrika die trust beskou sal word as ‘n persoon vir doeleindes van die OECD MTC. Verder sal sommige tipes trusts gesien word as inwoners en as uiteindelik geregtigdes vir doeleindes van die OECD MTC. Die oplossing voorgestel in die OECD se Verslag oor Vennootskappe behoort toegepas te word om toerekeningskonflikte op te los.