By: Elana Nel
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Over time laws in this case tax and
trust laws undergo changes which may necessitate
a review of the trusteed.
An example of this is the introduction of capital gains tax
back in 2001.
Developments in trust-based practice can also dictate
a review of the trust deed.
Noteworthy year is that a donor
was historically afforded very wide powers in
terms of the trusteed.
This can now lead to the trust being viewed as
the alter ego of the donor.
A trust deed may also need to be amended. If one or more
of the beneficiaries move offshore, especially to
a jurisdiction like the US.
The trustee must be reviewed in its entirety, but
they are certain Provisions that need specific attention.
Firstly any special powers granted to
the donor.
This can include Provisions relating to
quorums voting removal of
Trustees or the appointment of a successor trustee.
secondly any provisions relating to
decision making
thirdly the provisions that deal with the distribution
of income and capital and then
finally any provisions that would be affected
by a change in laws.
Typically, the trusteed itself would prescribe
how its Provisions can be varied.
The donor trustees and beneficiaries or
a combination of the parties may be
required to agree to the changes different Provisions
are also apply before and after
the death of the down or independent on
if any beneficiaries have accepted benefits if
the trustee does not quite avoids Amendment
or if it does not cater for an
amendment after the donor's death then a
court application may be required.
Once all parties have agreed to an amendment the
date of amendment must be placed on record at
the Masters office.