Trust law · South Africa
Trust disputes.
Advice on disagreements about the exercise of trustee powers and the administration of a trust.
Craig advises trustees and beneficiaries on disputed decisions, access to trust information and concerns about the conduct of administration. The starting point is the deed, the interest of the person seeking advice and the records of what has occurred.
Issues
Decisions, records and competing interests
- Trustee decisions and distributions. Interpreting the powers conferred by the deed and examining the authority, process and records supporting a disputed decision.
- Accounts and information. Advice on requests for accounts, resolutions or other trust records, having regard to the person’s interest and the circumstances of the request.
- Conflicts and administration. Concerns about trustee conduct, competing interests, a failure to act or a breakdown in the administration of the trust.
- Trust deeds and amendments. Disagreements about the meaning of a provision, the authority to amend it or the procedure followed in making a change.
Assessment
Establishing the legal position
A concern about a trust needs to be assessed against the instrument and the relevant facts. The initial work identifies the client’s interest, the decision or conduct challenged, the available evidence and the outcome being sought.
Depending on the instruction, assistance may include obtaining and examining records, advising on the available steps, correspondence with the other parties and negotiations. Where court proceedings are required, their conduct, any counsel’s brief and associated costs are addressed in the mandate.
If there is an impending distribution, disposal of an asset or court deadline, mention it in the first enquiry so that urgency can be assessed.
Representation & fees
Whose interests the practice represents
An instruction from a beneficiary is distinct from an instruction on behalf of the trustees. The practice confirms the identity of the client, authority to instruct and any conflicts before accepting the matter.
The written engagement records the work to be undertaken, the basis of fees and the treatment of disbursements. The scope of an initial assessment can be agreed before wider work is commissioned.
Enquiries
Preparing for an initial discussion
Provide the trust’s name, your role, the names of those involved and a brief account of the issue. Identify any existing advisers or proceedings and the next relevant date.
After conflict checks, the practice may require the deed and amendments, letters of authority, relevant resolutions, accounts and correspondence. Please wait for confirmation before sending those documents.
Instructions from professionalsEnquiries
Discuss a trust dispute.
New instructions are subject to conflict checks and written terms of engagement.
Relevant South African sources: Trust Property Control Act. Advice depends on the particular instruction.