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Bewind trusts

27 November 2008

In response to the Cape Town Registrar's Circular 5/2008 and the Query regarding trusts by John Christie of J Leslie Smith and Company, the following should be noted:


The Trust Property Control Act, 57 of 1988 defines a trust to mean "the arrangement through which the ownership in property of one person is by virtue of a trust instrument made over or bequeathed -


"(a) to another person, the trustee, in whole or in part, to be administered or disposed of according to the provisions of the instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument; or

(b) to the beneficiaries designated in the trust instrument, which property is placed under the control of another person, the trustee, to be administered or disposed of according to the provisions of the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument."


In the case of (a) above, ownership and control of the trust property vests in the trustee, while in the case of (b) the ownership vests in the beneficiary, but the control of the assets vests in the trustee. The latter is usually referred to as a "bewind" trust, and originated from the Roman Dutch Law concept of administration. The true "bewind" trust is, however, very rare.


It is noted that section 40 of the Administration of Estates Act 1965 does not distinguish between the different types of trusts, and according to Cameron, De Waal & Wunsh: Honoré's South African Law of Trusts, Fifth Edition, par. 167 on page 278, it is clear that the procedure for endorsement under section 40 is appropriate whether or not the trustee is entitled to the ownership of the trust property. On page 279 it is said that the effect of the endorsement depends entirely on the terms of the will. If the will grants ownership, then ownership is transferred. If it does not grant ownership (as in the case the "bewind" trust), then the trustee obtains such lesser powers as the will bestows.

In both instances, the provisions of section 40 is invoked by Deeds Registries.



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