Checklist when registering a testamentary trust

The following, however, need to be specifically observed when registering a testamentary trust::

(a) The testamentary trust is created by a valid will of the deceased. There are, however, conflicting views as to the moment at which the testamentary trust comes into being. Olivier deals effectively with these views at 26 and concludes, which appears to be the correct view, that the testamentary trust exists from the testator’s date of death. It is conceded that this existence is subject to, what one can call, a suspensive condition that the will is to be accepted as valid by the Master first (Administration of Estates Act 1965 s 8 and B8.5 supra).

(b) It is interesting to note that, while a testamentary trust forms part of a testamentary writing and is, therefore, per definition (Trust Property Control Act s 1), a “trust instrument”, the regulations under the said Act require that a fee of R100 shall be payable at the lodgement of each trust instrument, which payment shall be denoted by affixing adhesive revenue stamps to the trust instrument or by impressing stamps by means of a franking machine approved by the Commissioner for Revenue Services (cf Government Gazette 15061 GN R1540 13 August 1993). In view hereof the testator’s will, which at the same time also contains the trust instrument, is supposed to be affixed with the said revenue stamps when the will is delivered to the Master in terms of section 8 of the Administration of Estates Act 66 of 1965. In practice this payment is not required, presumably because the will containing the trust instrument, first needs to be registered with the Master in terms of the said section 8 during which procedure the Master may refuse to accept the will if “it appears to the Master that any such document, being or purporting to be a will, is for any reason invalid” (Act 66 of 1965 s 8(3) and 8(4)). Olivier at 27 also indicates the practice at the Master’s offices (which apparently is still the case) to regard the testamentary trust only to come into being once the estate has finally been wound up and the property is delivered to the trustee. It is then argued that the Master is already in possession of the trust instrument when the trustees apply for their letters of authority, and this causes the necessity for the payment of the prescribed fee to become redundant (Trust Property Control Act s 4(1)).

(c) In terms of section 3 of the Trust Property Control Act 1988, the jurisdiction of the Master, in respect of trust property which is to be administered or disposed of in terms of a testamentary writing, shall lie with the Master in whose office the testamentary writing or a copy thereof is registered and accepted. The section, however, allows some flexibility to the Master in determining his jurisdiction (s 3(1)(b), 3(2) and 3(3)).

(d) It is possible that in a specific will multiple trusts are created (cf The Taxpayer 1994 16 and 85) and it is advisable that each such trust be identifiable by a name. The Master will allocate a number to each testamentary trust registered with him for instance “MT 1/95” for the first testamentary trust registered for 1995 (cf Master’s Circular 12 of 1994). The number allocated by the Master is the only means of identifying a trust especially where there are several trusts with the same name.


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