It is not to say that if you have a so-called "registered" trust that it will be valid.
The following essential elements need to be present to create a valid Trust in South Africa, those elements are:
- The founder must express his/her intention to create a trust and not something else
- This intention must be expressed in such a way that it forms an obligation on the trustee/s.
- Trust property must be clearly and certainly defined
- The trust object must be clearly stated and lawful
- There must be at least one beneficiary,
- The beneficiary/ies must be clearly identifiable
- The property must identify and physically be transferred to the trustees.
- The Trustees must be authorized and have the capacity to act as such
The difficulty with a trust is that it is not like a company where you know that you are dealing with a company because of the Ltd behind the company's name. A trust can be invalid if that trust was not legally created as a trust (missing the essential elements of a valid trust) or it was not managed as a trust (alter ego).
Remember it is not the Master of the High court function to check if the above essential elements have been met with or if the Trust was managed correctly, therefore you can have a situation where a trust does have a Letter of Authority issued to the trustees but are in fact not a valid trust.
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