Ever wondered what records should be kept by trustees and whether you can request documents or details from the Master of the High Court, or from the trustees themselves?
What are a trustees’ record-keeping duties?
The Master may issue a written request to Trustees to account to his/her satisfaction and in accordance with his/her requirements about the trustees’ administration and disposal of trust property in terms of Section 16 of the Trust Property Control Act.
The Master may ask that any book, record, account or document relating to the trustees’ administration or disposal of the trust property be delivered to him/her. Trustees may also be called upon to answer questions put to them by the Master concerning the administration and disposal of trust property.
The Master may, if he/she deems it necessary, cause an investigation to be carried out by some fit and proper person appointed by the Master, into the trustees’ administration and disposal of trust property, and may make an order concerning the costs of the investigation.
These records and documents should be kept safe until the expiry of a period of five years from the termination of a trust in terms of Section 17, and may not be destroyed without the Master’s written consent.
What if a trustee does not comply with his/her duties?
If any trustee fails to comply with a request for records by the Master or to perform any duty imposed by the trust instrument or by law, the Master or any person having an interest in the trust property may apply to court for an order directing the trustee to comply with such request or to perform such duty in terms of Section 19.
Copies of Documents
Section 18 specifically provides for the furnishing of copies of the documents under the Master’s control to a trustee, his/her surety or his/her representative or any other person who in the opinion of the Master has sufficient interest in such document, upon written request and payment of the prescribed fee.
Public access to trust information:
Previously some Master’s offices were reluctant to give the public access to information about trusts. In March 2009 the RSA Acting Chief Master brought some clarity and uniformity with a directive regarding access to information.
The procedure to obtain information on a Trust (such as names of Trustees etc.), can now be summarized as follows:
- Written application should be made to the Office where the Trust is registered, providing reasons why this information is needed.
- If the request is by a trustee, his/her surety or representative, they will have automatic access to any information/documents in the file.
- The Master must exercise his/her discretion on the application of any other person, and weigh up the interest of the parties involved in deciding whether or not the information should be provided. After the Master has requested the input of the Trustees and beneficiaries, he/she will exercise a discretion whether to provide the applicant with the information or not.
- Should a request for information be denied by the Master’s Office, the applicant will need to apply to the Information’s Officer of the Department of Justice.
It would seem, therefore, that as long as the applicant can provide reasons and show “a sufficient interest” in respect of the trust, the Master should supply him/her with the information.
Beneficiaries’ rights to information:
In the case of Doyle v Board of Executors 1999 2 SA 805 (CPD) the court found that a beneficiary is entitled to request and receive “full, true and proper accounting, duly supported by vouchers” concerning the affairs of the Trust.
Should you require any assistance in obtaining information about a trust in which you have an interest, or need advice on your rights and duties as trustee or beneficiary, please contact our Trust and Estate Department for further assistance.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)