Things to know when acting as Trustee

by Annemarie Schutte


Trustee

All Trustees know that you may only act as Trustee if you are authorised by the Master of the High Court to do so. Thousands of people are signing documents to be appointed as Trustee, but do you truly know what you are attesting to? We are all used to the fine print (or not-so-fine print) we tend to ignore when signing documents.

As your Trust Advisor, I want to make you aware of a couple of important things.

When you request to be appointed as Trustee, the Master requires you to sign an affidavit, namely an 'Acceptance of Trusteeship by Trustee' or 'J417' form. Since this form must be signed in the presence of a Commissioner of Oaths, this is an affidavit.  The Master will determine if you are a fit and proper person to fulfil the role as Trustee based on the information on this affidavit.

In this affidavit, you attest to a couple of factors which will influence your ability to act as Trustee, such as:

  1. Have you ever been convicted of any offence of dishonesty or sentenced to prison without a fine option?
  2. Have you ever been declared insolvent?
  3. Have you ever been removed from office in respect to any appointment as a Trustee? and
  4. Have you ever been declared mentally ill/incapacitated?

If you answer yes to any one of the above points, we need to provide the Master with more details regarding the applicable point, i.e. the type of offence and sentence (in case of point 1 being applicable) or the court order ordering your rehabilitation (in case of point 2 being applicable) etc.

On the same affidavit you need to confirm the following:

  1. If you have knowledge and understand the law of Trust.
  2. You are aware of the fiduciary duties and responsibilities.
  3. By accepting the position of Trustee, you are exposing yourself to civil and criminal actions in terms of Section 9 of The Trust Property Control Act, 1988 (Act 57 of 1988).
  4. By accepting the position of Trustee, you are exposing yourself to removal action by the Master for failure to comply with any lawful request of the Master including a request to account in terms of Section 16 of The Trust Property Control Act, 1988 (herein after referred to as “the Act”).
  5. You will exercise direct special personal control to maintain accurate Trust records.

I would like to summarise the specific sections referred to in the affidavit to ensure you are aware of what you are attesting to:

Section 9 of the Act basically states that a Trustee must execute his duties with care, diligence and skill which can reasonably be expected of a person who manages the affairs of another. A Trustee cannot be indemnified in the Trust Deed against liability for breach of trust where he/she fails to show the degree of care, diligence and skill as required.

Section 16 of the Act enables the Master to call upon Trustees to account to the Master's satisfaction and in terms of the Master's requirements for the administration and disposal of Trust property. The Trustees may also be requested to deliver books, records or accounts relating to the administration or disposal of Trust property and shall, to the best of his/her ability, answer honestly and truthfully any questions put to him/her relating to administration.

The Master may even appoint an independent person to conduct an investigation into the Trustee's administration and disposal of Trust property and make an order in its discretion in connection with the costs of such an investigation.

We know you may not be up to date with Trust legislation, Master's directives and Court orders – that is why we are here to fill that gap.  If you have any questions relating to your appointment as Trustee or more specifically regarding your duties, please feel free to contact your Trust Advisor.

To be put in touch with a Wealth Masters Club approved trust advisor, please contact services@wealthmastersclub.com.




 
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