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Inlywing deur verwysing en bemakings aan bestaande trusts in die Suid-Afrikaanse reg

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dc.contributor.author Van der Merwe DL en
dc.date.accessioned 2016-09-22T07:16:29Z
dc.date.available 2016-09-22T07:16:29Z
dc.date.created 1991 en
dc.date.submitted 1994 en
dc.identifier.uri http://hdl.handle.net/20.500.11892/9942
dc.description.abstract The uncertainty surrounding testamentary bequests to existing trusts and incorporation by reference in regards to wills has on the face of it, been resolved by the judgement on Burnett NO v Kohlberg 1984 2 SA 137 (OK) (and on appeal 1986 3 SA 12 (A)). The uncertainty revolved around the question whether or not an (existing) trust deed is a testamentary writing as defined on our law. The Court in Kohlberg confirmed that a trust deed is not a testamentary writing and that a bequest to an existing trust, is in fact a bequest to the trustees qua trustees. The bequest forms part of a separate entity that consists of the trust assets and debts. The Court also reiterated that in-corporation by reference does not form part of our law of succession. Van Zyl FJ however, argues convincingly that the trust is nothing but and entity with legal personality. If a trust is accepted as such, many if not all, the controversies surrounding this subject will disappear. For the time being the Appellate Division of the Supreme Court has placed a lid over this viewpoint. The Court's argument does not convince and will hopefully not withstand the test of time. The question can rightly be asked whether the position will be the same where trustees are empowered with a discretion as to whom and the extend whereto benefits may be awarded to income and capital beneficiaries. At the root of this question lies the different of on the one hand the personal execution of a will and on the other hand the delegation of that power or right. The "special power of appointment" as known in the Anglo-American law is recognized in our law. Two forms/types of "general powers of appointment" are identifiable in our law of succession - one legal and the other not. The test for legality lies in the question whether the delegated has a beneficial right in regard to the trust assets or not. In the first instance the delegation will be valid, in the latter not. In Braun v Blann and Botha NNO and Another 1984 2 SA 850 (A) the court in principle recognized the validity of the conferment of our common law powers of appointment of trustees for the purpose of selecting income and/or capital beneficiaries form a group of persons designated by testators. To ensure the validity of a bequest by means of a power of appointment, the testator should provide for alternative succession - the so-called "gift over". Trustees should also be empowered to erect new trusts to be able to give effect to the clear intention and wishes of the testator, provided that the testator appoints the trustees of the new trusts and also determined the essential conditions and terms of such new trusts. Although the exact nature of a trust in South African law is still a matter of controversy, it is submitted that Van Zyl's views on the theoretical construction of the trust is unassailable and that his contribution to jurisprudence in this regard merits serious consideration. en
dc.language Afrikaans en
dc.subject Law en
dc.subject Private law (general)/Roman Dutch law en
dc.title Inlywing deur verwysing en bemakings aan bestaande trusts in die Suid-Afrikaanse reg en
dc.type Masters degree en
dc.description.degree LLM en

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