Developments in Estate Planning Duties of and taboos for trustees. Louis van Vuren. AGENDA. Recent changes Abolition of sec 3(3)(a) bis and insertion of sec 3(2) (i) in the Estate Duty Act, 45 of 1955 (EDA) Insertion of sec 9(4) in the EDA Changes proposed in 2009 budget
Louis van Vuren
“3. What constitutes an estate.— (1) …
(2) “Property” means any right in or to property, movable or immovable, corporeal or incorporeal, and includes—
but does not include— (a) – (h) …
(i) so much of any benefit which is due and payable by, or in consequence of membership or past membership of, any pension fund, pension preservation fund, provident fund, provident preservation fund or retirement annuity fund as defined in the Income Tax Act, 1962 (Act No. 58 of 1962), on or as a result of the death of the deceased.
out of a revenue estimate of
Just more than 0.1%
(2) Any provision contained in a trust instrument shall be void in so far as it would have the effect of exempting a trustee from or indemnifying him against liability for breach of trust where he fails to show the degree of care, diligence and skill as required in subsection (1).
COWAN AND OTHERS v SCARGILL AND OTHERS
 2 All ER (Ch. D)
Sir Robert Megarry V-C
At p 760
“The starting point is the duty of trustees to exercise their powers in the best interests of the present and future beneficiaries of the trust, holding the scales impartially between different classes of beneficiaries. This duty of the trustees towards their beneficiaries is paramount. They must, of course, obey the law, but subject to that, they must put the interests of their beneficiaries first.”
Simplex (Pty) Ltd v van der Merwe and Others 1996 (1) SA 111 (W)
Trust Property Control Act 57 of 1988 (sec 6(1))
It follows that a trustee may only act once he is in possession of Letters of Authority.
Doyle v Board of Executors1999 (2) SA 809 (C).
Sackville West v Nourse and Another 1925 AD 516
Hoosen and Others NNO v Deedat and Others 1999 (4) SA 425 (SCA) C
Trustee Duties slides based on presentation by David Knott, Head of Product of BoE Trust Ltd