An evaluation of the limitation imposed upon freedom of testation by section 13 of the Trust Property Control Act 57 of 1988

Abstract

Section 13 of the Trust Property Control Act bestows on the High Court the power to vary the provisions of trust instruments. This section’s applicability to testamentary trust provisions occasions its frequent classification as a statutory limitation on South African testators’ freedom of testation. Section 13’s common law counterpart, namely variation of testamentary trust provisions ob causam necessariam, is however, not likewise classified as a common law limitation on freedom of testation. It appears from case law that the latter instance of variation, although occasioning a departure from the wishes of the founder of a testamentary trust, still occurs in consonance with such wishes, rather than in contradiction thereof. The non-classification of variation ob causam necessariam as a limitation on freedom of testation therefore appears justified. Section 13, however, exhibits somewhat of an ambivalent character in the above regard, in that its limiting effect on freedom of testation is, it is submitted, dependent upon the content of a court’s order under this section as well as the facts of the particular case. In this contribution, case law on section 13 is analysed in support of this contention.