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Question
Posted by: Dreamgirl | 2010-04-07

Trust &  beneficiaries

My partner and I were married tradiltionally in 2007. We currently live in a house owned by his family trust, where his kids from the previous marriage and the ex-wife are beneficiaries. I currently pay towards the rates, garden service and make ad-hoc financial contributions, to make it a home. What are my rights to the property in this regard?
He has also suggested changing the beneficiaries of the trust to myself and our son. What is the legal requirement for doing so? Will he have to get the current beneficiaries'' approval or have to settle with them before changing them? Please advise.

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Our expert says:
Expert ImageFamily law expert

You have no legal rights to the ownership of the property per se, anyway as it stands now. A Trustee derives his power specifically from the Trust Deed. The trust deed give a trustee extensive powers to preserve and protect trust assets. The ability of the trustees to amend the deed is governed by the terms of the trust deed. In the absence of anything to the contrary the beneficiaries can be changed by a written agreement of the trustees in the form of a resolution lodged with the Master of the High Court.The duties of a Trustee are set out in The Trust Property Control Act, 57 of 1988:

- Act in accordance with the Trust Deed Act with care, diligence and skill.
- Keep proper record of trust assets and be accountable.
- Administer and protect Trust Assets.
- Act in good faith towards Trust assets and beneficiaries.

All depends on the wording in the Trust Deed. If there is a clause stipulating that the Trustees are not allowed to change the beneficiaries, you will be left without any claim to the Trust Assets.

A beneficiary has no claim to the Trust assets, untill vesting of those assets in terms of the Trust Deed, that is the purpose of a Trust and neither does a Trustee have any right to such assets. unless of course the Trustee is both Trustee and beneficiary.

Best would be to study the wording of the Trust deed.

Bertus Preller
info@divorceattorney.co.za

The information provided does not constitute a diagnosis of your condition. You should consult a medical practitioner or other appropriate health care professional for a physical exmanication, diagnosis and formal advice. Health24 and the expert accept no responsibility or liability for any damage or personal harm you may suffer resulting from making use of this content.

2
Our users say:
Posted by: G-Dad | 2010-04-07

It depends who created the trust and who is the trustee, if he is the only trustee and his ex wife and he had no previous agreement then it is possible to add you and the child as beneficiaries, but if there were previous agreements in place there is no chance as it could be part of a settlement agreement, his ex wife will have to give her consent.

Reply to G-Dad
Posted by: family law expert | 2010-04-07

You have no legal rights to the ownership of the property per se, anyway as it stands now. A Trustee derives his power specifically from the Trust Deed. The trust deed give a trustee extensive powers to preserve and protect trust assets. The ability of the trustees to amend the deed is governed by the terms of the trust deed. In the absence of anything to the contrary the beneficiaries can be changed by a written agreement of the trustees in the form of a resolution lodged with the Master of the High Court.The duties of a Trustee are set out in The Trust Property Control Act, 57 of 1988:

- Act in accordance with the Trust Deed Act with care, diligence and skill.
- Keep proper record of trust assets and be accountable.
- Administer and protect Trust Assets.
- Act in good faith towards Trust assets and beneficiaries.

All depends on the wording in the Trust Deed. If there is a clause stipulating that the Trustees are not allowed to change the beneficiaries, you will be left without any claim to the Trust Assets.

A beneficiary has no claim to the Trust assets, untill vesting of those assets in terms of the Trust Deed, that is the purpose of a Trust and neither does a Trustee have any right to such assets. unless of course the Trustee is both Trustee and beneficiary.

Best would be to study the wording of the Trust deed.

Bertus Preller
info@divorceattorney.co.za

Reply to family law expert

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