Dave
it may be an idea to read the Parker decision and then take a decision. e mail me and I'll send you a copy.
Sieg
Dave
it may be an idea to read the Parker decision and then take a decision. e mail me and I'll send you a copy.
Sieg
Dave A (26-Feb-09)
As far as I can determine the 'Parker Case' relates to the issue of Capacity and Authority. Specifically the number of actual Trustees Vs the minimum number as per the Trust Deed. I did not see anything related to the control and benefits of trustees and beneficiaries.
This sounds like a lawyer trying to drum up business for himself bending a ruling to suit his objectives.
One of the main reasons I have not done any Trusts is because of the minimum of two trustees ruling. The problem being, as an example, I set up a trust with myself and my wife as Trustees and something should happen where she is operating by herself, she has to be reliant on an 'outsider' trustee in the form of the accountant, lawyer or friend. While they all tell you it just a title and there is no intentions regarding the ongoing relationship of the trust, there are always enough examples of this not being the case.
Is this one of those examples? I don't know and may not have the gist of the case correct - but there is always that niggle at the back of my mind.
Related to this discussion would be the L Badenhorst Divorce Case which looked at control of assets and intentions behind the setting up of trust. Again the independence does not relate to changing the rules of trustees and beneficiaries but it relates to the application of trust law as it stands.
As in most things the legal side will look at intention and if this is outside the letter and spirit of the law, then the courts have no problem in applying an adverse ruling.
I might be wrong but as far as I could establish you have to have an independent person as a trustee. i.e. minimum of three persons .
The contrary means the Trust is not legal.
I listened to "Wat sê die prokureur" recently and this subject was discussed and according to Igna Kleinsmidt this is compulsory !
I am selling this for the same money I paid for it !
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You may never know what results will come from your actions, but if you do nothing, there will be no results... Rudy Malan † 05/03/2011
It does a bit. But in this instance it goes beyond that.
To be plain, the main purpose is to ensure continuity for my business and other major interests in the event of my untimely demise, so there isn't a lot of activity. It has nothing to do with protecting assets from creditors.
Essentially the lawyer is trying to change our contract. I paid substantially more than par for those trusts to be set up on the understanding that the lawyer's role as trustee was covered in the fee for the rather minimal number of resolutions that would be required, and to execute certain preset resolutions should I no longer be able to fulfill the role of trustee.
To change the contract, he needs to establish that the conditions under which the contract was entered have materially changed.
Have a resolution in place for your replacement.
I suspect confusion around the three trustee issue stems from the NCA requirements i.r.o. trusts for the NCA's specific purposes.
Participation is voluntary.
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A trust for each property is a bit of an overkill, even my trust adviser said so. A lot of properties in one trust is no good either. So why not use the middle? I have three entry level units in my trust and would probably consider a new trust from the 4th unit onwards.
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