Page 25 - Nexia SAB&T Trust Guide 2022

Duty of care and negligence –a trustee must act with “the care, diligence and skill
which can reasonably be expected of a person who manages the affairs of another”.
Any provision in a trust deed which exempts a trustee from liability for negligence
is void and a trustee may be held liable for any losses suffered by beneficiaries if
it is found that the trustee did not act with the required degree of care and skill in
the administration of the trust assets.
Accountability – a trustee is accountable at all times to the Master of the High
Court and to the beneficiaries. If requested in writing to do so, the trustee must give
an account of administration and disposal of trust property, provide any relevant
book, record, account or document and honestly and truthfully answer any relevant
questions by the Master of the High Court. If a trustee becomes aware of any acts
or occurrences that may be prejudicial to the rights of the beneficiaries, action
must be taken.
Administration – a trustee is also required to adhere to any other specific
administrative requirements stipulated in the trust deed, and ensure that he
understands the trust deed and the duties that are expected of him in his office
as trustee.
Obligations in relation to the trust property
Obtain control of trust property – the trustee must obtain effective control over the
trust property as soon as possible after the issue of the Master’s Letters of Authority.
Registration and identification of trust property – the trustee must identify the
trust property and keep it separate from any personal property. Property (including
immovable property and any account or investment at a financial institution) should
be registered in the name of the trust. Section 11 of the Trust Property Control Act
states as follows:
11. (1) Subject to the provisions of the Financial Institutions (Investment of Funds)
Act (no. 39 of 1984), Section 40 of the Administration of Estates Act (no. 66 of
1965), and the provisions of the trust instrument concerned, a trustee shall:
(a) indicate clearly in his bookkeeping the property which he holds in his capacity
as trustee,
(b) if applicable, register trust property or keep it registered in such manner as to
make it clear from the registration that it is trust property,
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