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without complying with the right formalities, is potential invalidity of the decision.
In your situation, if certain formalities such as a specific resolution by the trustees
authorising a specific trustee to make the offer was required and not done, then
potentially the trust could not be bound by the offer made by the trustee.
This does not mean that the trustee that claimed to have been authorised, can
get away scot-free. You could sue the trustee personally for damages arising
from the trustee’s misrepresentation or breach of warranty, if he warranted in the
sale agreement that he had the necessary authority.
Given the complexity and the necessity to carefully evaluate the claim of the
trust that the necessary authority did not exist, it is our recommendation that Commercial
you consult with your attorney to review the trust deed and advise you on your
remedies and recourse against the trust and/or trustee.

Can a testamentary trust be changed later?

February 2018

“My wife and I are discussing providing for the creation of a testamentary
trust in our will to take care of our minor children upon our untimely death. I’m
worried though that if we establish a trust, it may be too rigid to deal with the
changing circumstances of our children. Can the trust be changed after our
death should it be necessary to do so?”

A testamentary trust or trust mortis causa is established in a will and comes into
effect upon the death of the testator (founder) of the will. Such trusts are typically
used to protect the interests of minors or dependants who are unable to take
care of themselves. Some or all of the assets in the estate are upon the death of
the testator moved to the trust which is administered by trustees on behalf of the
beneficiaries. A testamentary trust often terminates at a pre-determined time or
event, for example when the beneficiaries reach a certain age.
As a rule of thumb the terms of a testamentary trust cannot be amended.
The Trust Property Control Act 57 of 1988 (“the Act”) does grant our Courts the
power to amend a trust deed, where for example a provision brings about
consequences which in the opinion of the court the founder of a trust did not
contemplate or foresee and which hampers the achievement of the object of
the founder, prejudices the interest of the beneficiaries or is in conflict with the
public interest.
Accordingly, in a recent High Court decision, it was found that a variation of
the provisions of a testamentary trust (brought about by agreement between
the trustee and the beneficiaries) was valid. Despite the fact that a trust is of

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