Master’s directive creates a uniform approach for obtaining information about a trust
The Department of Justice and Constitutional Development (“DOJ”) has published a directive to make sure that the Masters’ offices adopts a uniform approach when providing information about trusts. This is a move that may make instituting legal proceedings against a trust significantly easier.
Generally, when instituting legal proceedings against a trust, each trustee should be cited as a defendant or respondent in the legal proceedings. This can become a difficult task, because up-to-date information about the current trustees is not always readily available, since some Masters’ offices provide any information requested, while others first request the permission of the trustees/beneficiaries before providing the information.
The directive states that the following provisions and legislation should be considered when a request for information in relation to a trust is requested:
- section 18 of the Trust Property Control Act, 1988: “… regarding the documents in connection with the estate of a deceased person, the Master shall upon written request and payment of the prescribed fee furnish a certified copy of any document under his control relating to trust property to a trustee, his surety or his representative or any other person who in the opinion of the Master has sufficient interest in such document.”
- the Access to Information Act, 2000 (PAIA) and
- Promotion of Administrative Justice Act, 2000 (“PAJA”)
The directive also sets out the procedure to be followed when a request for access to information regarding a registered trust is received by the Master:
- all applications need to be in writing and should justify the request for the information;
- a trustee, their surety or representative need to have automatic access to any information/documents in the file;
- The Master, when dealing with applications of any other person, must exercise their discretion in determining whether or not the information may be provided. This must include the Master consulting with the trustees and founder of the trust in terms of section 3(2) of PAJA and weighing up the interest of the parties involved.
- In circumstances where the Master refuses to provide the information, the Master must hand the application back to the applicant and refer them to the information officer of the DOJ.
The directive will assist in ensuring interested parties can access accurate and up-to-date information about trusts and the procedure to follow to do so.
Executive | Dispute Resolution
Candidate Legal Practitioner | Dispute Resolution