By Sanette Viljoen
In essence a trust is an agreement or contract between the founder of the trust, the trustees and the beneficiaries of the trust. The deed of trust assumes the form of this agreement or contract.
The trustees of a trust may only act in accordance with the provisions of the deed of trust. Should a trustee act in conflict with the deed of trust, his action is unlawful and can be condemned by a court or even set aside.
Sometimes the deed of trust is obsolete or even drawn up wrong and impracticable and no longer serves the purpose for which the trust was established. In such a case the deed of trust needs to be amended.
In general there are three ways in which a deed of trust can be amended:
The founder and trustees sign an amendment agreement that contains the proposed amendments. In a case where a beneficiary has already received a benefit in terms of the deed of trust, he is regarded as a party to the initial agreement and he must therefore also be a party to the proposed amendment agreement.
It is important here to note that all the initial parties to the deed of trust must agree to this amendment. If the founder of the trust has died, this way of amendment cannot be used.
The deed of trust is amended in accordance with the provisions of the amendment clause of the deed of trust. This clause lays down how the amendment must be made. This clause differs from trust to trust and the provisions of each deed of trust must be pertinently taken cognizance of.
If the trust does not have an amendment clause, one of the other two ways mentioned here will have to be used.
The deed of trust is amended by means of a court application. Amendment by means of a court application would be the appropriate way where neither of two above-mentioned options will be suitable for the amendment.
It is important to get specialised legal advice for the initial drawing up of the deed of trust in order to make sure that the deed is drawn up right with valid and practicable provisions to avoid future problems when the deed of trust is amended.