Benefits of a Trust
• Ensures the smooth handover of assets from
one generation to the next.
• Cares for assets for those who are unable to
look after the assets themselves.
• Preservation of wealth
– Example: a farm or holiday house passed
from one generation to the next – EDT
Benefits of a Trust
• Reduction of death duties which are made
up of :-
– Deemed CGT
– Exec fees
– Estate duty tax
• Protection of assets from creditors.
Benefits of a trust
• Income tax, Capital gains tax and donations
– Donations tax.
• If a natural person makes a donation
greater than R100k then donations tax.
• From a trust then no donations tax.
– Income Tax and capital gains tax in the
trust – discuss at a later stage.
Disadvantages of a trust
• In order for a valid trust to come into existence the
donor must hand over ownership and control to
• The trustees become owners of the asset.
• Decision making is now made in terms of the deed
and not by 1 trustee ie the original donor.
• Costs: Banks normally charge between 1 – 2% of
Inter Vivos v Testamentary
• Pro-active planning v Re-active
• Testamentary trust is more ridged and
it cannot be altered.
• IV Trust is normally open ended with
regards to vesting date whereas a TT
usually has a fixed vesting date.
Role of independent trustee
• Now required after decision of Land &
Agricultural Bank v Parker.
• Shouldn’t just appear in name.
• Must be party to all decisions and should
attend all trustee meetings.
• His/her conduct could show if the trust is a
bona fide trust or a sham.
Roles and duties of a trustee
• Ensure that the trust property is adequately insured.
• Funds are properly invested by measuring fund managers performance
to approved benchmarks.
• Determine the short, medium and long term income and capital needs
of the beneficiaries.
• Ensure that the provisions of the trust deed are complied with and
upheld at all times.
• Ensure that all the trusts’ statutory requirements are complied with.
• Prepare and maintain a trust asset register (investments and fixed
• Conduct trustee meetings (annually, bi-annually or quarterly).
• Record minutes of the trustee meetings and investment decisions.
• Maintain and safe keep the minute book.
• Ensure loan agreements are kept.
Problem clauses in trust deeds
• Dynamic document that must be reviewed
regularly. Tax laws and trust laws change.
• Experience at least 9 out of 10 trusts either
have wrong clauses or are missing clauses.
• The trust deed is drawn up in such a way that the trustees are subject to the
control of the founder in exercising their duties. The result is that,
although the founder gives up control in form, in substance this is not the
• i) “The trustees have the authority to nominate and appoint additional
trustees of their own choice subject to the following:
– During his/her life Mr A has the exclusive right to nominate trustees for the
trust of his choice or to remove trustees at his discretion.”
• The mere fact that a founder has the right to appoint or remove trustees
should not in itself indicate that the founder/donor never intended to give
up control of the trust assets. As long as the appointment is in the best
interest of the beneficiaries, and not to protect the interests of the
founder/donor, then the substance of the trust should not differ from its
• “Notwithstanding anything to the contrary herein
contained, for as long as Mr B acts as a trustee he
shall be entitled to veto any resolution proposed
by the trustees.”
• Where the veto right is structured positively in
the sense that one of the trustees (who is also a
beneficiary) can overrule the rest then this will
have negative implications with regards to income
tax, capital gains tax and estate duty tax.
• “All resolutions by the trustees will be taken by a
majority vote provided that the vote of Mr B is one
of the majority votes.”
• Where the right is structured as a ‘negative veto
right’ it appears as if this right does not bring
section 3(3)(d) or section 7(6) and section 71 into
• “Mr C has the right to act alone in all matters
concerning the trust without consulting the other
• Once again this veto right is positively structured
in the sense that one of the trustees (who is also a
beneficiary) can overrule the rest. This will have
negative implications with regards to income tax,
capital gains tax and estate duty tax.
• “ It is determined specifically that Mr D will have the right
to, in his will, prescribe the formula for the distribution of
Trust assets amongst the principal beneficiaries at the
termination of the trust, and this indicates which part of
the assets will go to which beneficiary and these
allocations need not be equal in size, value or extent.”
• If Mr D is the donor/founder, trustee and also a beneficiary
(especially a capital beneficiary) then it appears as if this
clause falls within the scope of section 3(3)(d).
• Testamentary clauses often have the following supplementary clauses
added to neutralize the estate duty tax implications.
• “Notwithstanding anything else to the contrary stated in this deed, no
trustee shall at any time qualify as an income or capital beneficiary of
this trust or receive any benefits as such for so long as he is competent
to dispose of trust property for his own benefit or for the benefit of his
estate in the spirit and wording of section 3(3)(d) of the estate Duty
Act No 45 of 1955 or any later amendment thereof.
• “The reservation of the testamentary power shall never be interpreted
in such a way that the conclusion be drawn that the
donor/founder/trustee (who is given the right) has the right to allocate
the trust income or capital to himself or his estate.”
• Although the above clauses will neutralize the estate duty implications
they do not have the same effect with regards to the income tax and
estate duty tax implications.
Taxation of Trusts
• Income tax and capital gains tax.
• Distribution to beneficiaries – Sect 25B
& paragraph 80.
• Attribution – Sect 7 & para 68 – 72.
• Taxation in the trust at 40% and 20%
Inter Vivos Trusts
Taxation of trusts.
– Income tax
• Income is taxed in the hands of the trust at 40%. No
rebates are granted.
• Income is distributed to the beneficiaries and taxed
in their hands at their tax rates. Income retains it’s
• Opportunities through distribution i.e. university
fees for children and school fees for grandchildren.
• Attribution of income to the donor.
• Ian and his wife Leigh-Ann have 3 children, namely Lisa
20, Paul 18 and Greg 16. Ian and Leigh-Ann are both
employed and both earn in excess of the maximum
marginal rate of 40%. Lisa and Paul are both at university
and have no source of income and Greg is still at school.
In order to minimise his death duties and on the advise of
his tax advisor Ian established an inter vivos trust. He
transferred R5 million in cash and other growth assets to
the trustees and they in turn invested it in various
portfolios. At the end of the financial year the trust had
earned R120,000 in taxable interest income.
Example continued …
• The trustees can distribute income to Lisa and
Paul as they are both over 18. They would each
receive R60,000 which they need to declare in
their tax returns. Owing to the fact that they
receive no other income their tax liability would
each be R0. Both Lisa and Paul can now use these
funds to pay for their education.
• There is now no need to distribute to Ian or
Leigh-Anne or to retain the income and tax it in
Inter Vivos Trusts
Taxation of trusts cont …
– Capital Gains Tax
• Gains are taxed in the hands of the trust at
20%. No rebates are granted.
• Gains are distributed to the beneficiaries and
taxed in their hands at their tax rates.
Maximum rate would then be 10%.
• Attribution of gains to the donor.
Trusts and your will
• Don’t take it for granted that you can
automatically bequeath assets to your IV trust. If
the definition of beneficiaries are too wide the
bequest could fail Braun v Blann & Botha.
• Leaving the primary abatement to an IV trust.
• Nominating a replacement trustee.
• Great opportunity to transfer fixed property as
there are no transfer duties.
• Section 9(4) of the transfer duty act.
Inter Vivos Trusts
– Ensure that one of the trustees is independent.
– Ensure that your trust deed is “compliant” with
current legislation and case law.
– Ensure that all the statutory requirements are
complied with i.e. trustee meetings, minutes of
all decisions etc.
– Ensure your will “compliments” your trust.
– Remember, both are dynamic documents and
should be reviewed on a regular basis!