The Master of the High Court a creature of statute, with approximately 15 offices throughout the country, is tasked with regulating the administration of Trust Deeds. One of the pertinent questions facing Trustees and Beneficiaries alike is what the requirements are to amend the name of an Inter-Vivos Trust i.e., a trust which has been created during the lifetime of the founder. Furthermore, how does one go about recording and registering the administration of Trust Deeds in South Africa?
Firstly, the Trustees, Founder and Beneficiaries, must reach an agreement regarding the proposed amendment to the name of the Trust. This can take the form of a written notice, created by the Trustees and Founder, that notifies all Beneficiaries of the intention of a name change. Written consent should be obtained from all Beneficiaries as set out in the Trust Deed and any vested Beneficiaries (if the Beneficiaries have not been named in the Trust Deed).
Secondly, a formal application should be lodged in the prescribed format with the Master of the High Court. This application must be supported by the following role players: Founder, Trustees, and all Beneficiaries.
What documentation must be lodged with the Master of the High Court?
- Deed of Amendment reflecting the old and new names of the Trust.
- Original Letter of Appointment issued in the old name of the Trust.
- Written consent by all beneficiaries of the Trust.
What could prevent a Trust name from being changed?
- If the provisions of the Trust Deed prohibit the proposed name change.
- If the change of the name of the Trust is in contravention of Section 13 of the Trust Property Control Act 57 of 1988.
Section 13 of the Trust Property Control Act, provides that the name of a Trust shall not hinder the objects of the Trust as set out by the Founder, prejudice the interest of any beneficiary or conflict with public policy.
Should the Master of the High Court be satisfied that no prohibition to the name change is present, it will issue a new letter of Appointment which reflects the previous names of the Trust and the, in sequence, the new proposed name.
The responsibility, for notifying all the necessary third parties and applying for the amendment of any registered title deeds in the name of the Trust, remains with Trustees of the Trust.
There is no specific procedure set out in the Trust Property Control Act which provides for the change of a Trust name, with the exception of authorizing the Master of the High Court to issue a new Letter of Authority in terms of Section 6 of the Trust Property Control Act.
Thirdly, effect should be given to the name change. Section 93 of the Deeds Registries Act provides for an application to amend, the registered owner of any property registered in the Deeds Office, a Trust name. This application, accompanied by the proof of name change issued by the Master of the High Court, may be lodged with the Deeds Registry. This application must include both the old and new names of the Trust.
In terms of Section 93(1) of the Deeds Registries Act, every person who may have an interest in the property registered in the name of the Trust is required to consent thereto. Therefore, if the property is mortgaged, the consent of the bondholder is required for the change to be noted.
In conclusion, while the decision to amend the name of a Trust may be a simple decision, the practical application of the same may prove challenging. The responsibility for effecting the change remains the duty of the Trustees.
Contact Smith Attorneys to assist and determine if a change of name is possible in terms of the Trust Deed, or discuss any other changes to the Trust Deed.