Trusts & Wills

The law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, the extent of the benefits they are to receive, and determines the different rights and duties that beneficiaries and creditors may have in a deceased's estate.

The manner in which assets are distributed depends on whether the deceased has left a valid will, which will be subject to the Wills Act, 1953, or has died intestate.  In the event of intestacy, the assets are distributed to the heirs in the order of preference stipulated by the Intestate Succession Act, 1987.

The Trust Property Control Act, 1988 forms the framework in which trusts operate. All decisions and actions taken by the trustees must be made with reference to the trust deed and the Act.

A testamentary trust is created by a will and arises after the death of the founder. An inter vivos trust is created during the founder's lifetime by a trust instrument.

Trustees thus have a fiduciary duty to manage the trust to the benefit of the beneficiaries of the trust. They regularly account for trust income and expenditures. A court can remove a trustee who breaches their fiduciary duty.