Trusts: Can a testamentary trust be amended?
A testamentary trust is then formed upon his or her death and the terms of the last will and testament form the terms of the trust.
Unlike an inter vivos trust, which is a contract that the contracting parties (the founder, the trustees and potentially the beneficiaries) can amend in terms of our law, the trustees cannot amend the trust instrument of a testamentary trust on their own, as one of the contracting parties – the founder – is no longer around.
In South Africa, the legal principles applicable to a testamentary trust are to be found in the law of testation, unlike that of inter vivos trusts, which are to be found in the law of contracts (Crookes v Watson case of 1956 and the Braun v Blann & Botha case of 1984).
An individual, therefore, has the right to determine the heir(s) to his or her property upon his or her death as he or she wishes (called “freedom of testation”), even if such a bequest is unpopular, as long as the person making the bequest is of sound mind. An aggrieved beneficiary can therefore not have the trust instrument (the last will and testament) amended to include him or her.
Source: iol.co.za
