Department of Private Law

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Browsing Department of Private Law by Author "Bothma, Pieter-Schalk"

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    The significance of trustee independence for the validity and administration of a trust
    (Stellenbosch : Stellenbosch University, 2020-12) Bothma, Pieter-Schalk; De Waal, Marius Johannes; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The proper administration of the trust has proven to be fertile ground for academic study in South Africa. One aspect in particular, trustee independence, has contributed to divergent views in this respect. Of interest for this dissertation is the impact of trustee independence (or the absence thereof) on the validity and administration of the trust. It is well established that trustees have a duty to act independently, but the theoretical basis for this duty of independence remains the subject of debate. In this dissertation, two competing propositions, identified herein as the “establishment” and “fiduciary” propositions are examined. It is proposed that these propositions may be reconciled through the “independence duality model”, developed herein to provide a general theoretical basis for a trustee’s duty of independence. The dissertation commences with an analysis of the history of, and what is considered the motive for, the development of the trust form. From this analysis, the duality in trustee independence emerges that serves as the basis for the model introduced herein. The constituent parts of this model, the establishment proposition and fiduciary proposition, are further developed and it is proposed that this model serves as a sound basis to further explain the impact of a lack of trustee independence on the validity of a trust as well as the consequences that may follow where a trust, although valid, suffers from a lack of trustee independence. The dissertation concludes with an application of the independence duality model to practical trust problems, thereby illustrating the utility of the independence duality model in determining contemporary difficulties encountered such as “sham trusts” and the abuse of the trust form.