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1
Kaur, Jaswinder. "Choice of law rules for testamentary trusts." Thesis, University of Birmingham, 2014. http://etheses.bham.ac.uk//id/eprint/4978/.
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This thesis critically analyses the English choice of law rules for testamentary trusts. After outlining the research context (Chapter 1), the key concepts and terms for testamentary trusts in cross-border estates are introduced (Chapter 2). The dual system of choice of law rules (one for testate succession and the other for the trust) are discussed with reference to reads 'rocket and rocket-launcher' illustration that has been favoured by legislators and commentators alike. Thus, the current choice of law rules for testate succession matters are analysed in Chapter 3 and the choice of law rules for trusts are examined in Chapter 4. This leads to Chapter 5 concluding that the choice of law rules for the creation of testamentary trusts (the rocket-launching aspects) are particularly problematic. The discussion thereafter focuses on how the choice of law rules for the rocket-launching aspects of testamentary trusts could be improved with reference to the international and European reform attempts to legislate on succession and trusts, including the Hague Succession Convention and the European Succession Regulation (Chapter 6). Moreover, the limited UK reform attempts relevant to the choice of law rules for testamentary trusts are discussed in Chapter 7. Chapter 8 proposes recommendations for reform.
2
Chan, Kathryn. "The public-private nature of charity law in England and Canada." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:a77dd8a0-9a94-46f0-9e83-761103f45655.
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This thesis examines various aspects of English and Canadian charity law in terms of their relationship with the contested categories of ‘public law’ and ‘private law’. It argues that the law of charities can be regarded as a hybrid legal discipline in both a general or categorical sense, and in the context-specific or functional sense that both the conditions for obtaining charitable status, and the regulation of the conduct of charities and their trustees, are continually being adjusted in such a way as to maintain in a broad sense a functional equilibrium between individual project pursuit and collective project pursuit; that is to say, an equilibrium between the protection of the autonomy of property-owning individuals to control and direct their own wealth, and the furtherance of competing public interests or visions of the good. After sketching out the history and nature of the common law charities tradition and the contemporary English and Canadian regulatory regimes, the thesis pursues its analytical and comparative hypotheses by examining two important features of English and Canadian charity law, the public benefit doctrine and the rules of locus standi that determine who may seek relief for misapplications of charity property. It then addresses the comparatively modern issue of the governmental co-optation of charitable resources, considering to what extent modern pressures associated with the retrenchment of welfare states threaten to destabilize charity law’s hybrid equilibrium in EW and Canada. The thesis then turns to the emerging phenomenon of social enterprise, arguing that shifts to charity law’s functional equilibrium may explain the emergence of this ‘post-charitable’ legal form. The thesis concludes with some observations on the hybrid nature of the law of charities, and on the different functional equilibriums between individual project pursuit and collective project pursuit that have been reached by English and Canadian charity law.
3
Elliott, Steven Ballantyne. "Compensation claims against trustees." Thesis, University of Oxford, 2002. http://ora.ox.ac.uk/objects/uuid:8bc46e2a-394d-4653-938a-fc1af4136450.
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The thesis examines the claims that may be brought against express trustees for pecuniary compensation. It contends that a difference of principle divides this conventional category in two. Some compensation claims complain that the trustee has breached one of his duties and seek to charge him with reparation for whatever ensuing loss has been suffered by the beneficial interests. These claims resemble claims for damages founded upon a tort or breach of contract. Other compensation claims overlook whatever breach there may have been and demand that the trustee account and perform the trusts, in money where this cannot be done in specie. This second type of claim resembles a claim for the specific performance of a contract, bearing in mind that specific performance may be given with compensation where the defendant cannot deliver what he has promised. The claims are cumulative subject to the principle of full satisfaction.
4
Johnson, Patricia Anne. "The taxation of trust income : some inherent problems and comparative perspectives." Thesis, University of British Columbia, 1985. http://hdl.handle.net/2429/24433.
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The taxation of trust income is subject to inherent problems due to the nature of the trust itself which allows the separation of the legal and equitable interests and the creation of differing equitable interests in income arising from property held in trust. Problematic areas include questions
as to whom should be taxed on trust income, when and at what rate persons should be taxed, and on what they should be taxed.
Taxation of trust income under Canadian law depends on the nature of the income as currently distributable or as accumulating, and on the nature of the trust as testamentary or inter vivos. Provision is made for the taxation of the trust or of the beneficiary. Certain types of income are permitted to retain their character in the hands of the beneficiary.
An attempt to devise a logical system for the taxation of trust income reveals in detail the type of problems inherent
in such a system. Conceptual and practical difficulties in determining the appropriate taxpayer, rate, and timing of taxation are considered as is the nature of the beneficial interest and its significance for tax purposes. The Canadian taxation of trust income does not completely resolve these problems. The proposals of the Royal Commission and the current law in the United States and the United Kingdom are compared and contrasted with Canadian law. Differences among the rules of the various systems, reflect differences in the way they deal with the problems inherent in the taxation of trust income.
The problems and their Canadian solutions are reviewed in comparison with methods adopted elsewhere. Any change to the existing rules would require a number of interrelated changes. It is not clear that improvements which might be effected are justifiable given the increased complexity attendant on their introduction.Law, Peter A. Allard School of
Graduate
5
Hunter, Fiona. "A trust as an alternative to a will?" Thesis, University of British Columbia, 1988. http://hdl.handle.net/2429/27766.
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The purpose of this thesis is to study the feasibility of using a trust as an alternative to the will in the jurisdiction of British Columbia. The genesis of the study lies in the liberal interpretation and application of the Wills Variation Act by the courts in this province. Assuming that the free alienation of property upon death is a sound principle, it is incumbent upon the legal community to find methods of avoiding the interference of the judiciary in testamentary matters.
To properly assess the trust as an alternative to the will, a brief overview of both is provided. The historical context of the trust is examined, followed by a review of its use in the United States as a wills substitute. The particular trust popular in the United States is one containing a power to revoke by the settlor, a life interest with power to encroach upon capital in favor of the settlor, and powers of modification and control retained by the settlor. It is hereinafter referred to as the revocable trust.
Whether the revocable trust would be acceptable to the commonlaw of British Columbia is examined, and the conclusion reached is that there is nothing in theory to prevent its use as an alternative to the will. However, careful drafting must be used at all times to prevent attacks upon the validity of the trust itself.
Certain practical considerations in using the revocable trust as an alternative to the will are reviewed, including income tax laws, provincial tax laws, and possible claims by beneficiaries. The more philosophical issue of whether the use of a trust should be permitted to avoid claims by surviving spouses and children is also examined. Conflicting doctrines in the United States are reviewed in light of existing caselaw in British Columbia. The tentative conclusion is that our own courts will permit a settlor to avoid succession claims by employing the trust. Again, however, careful drafting is crucial, and the facts in each case must be reviewed.
The study establishes that the revocable trust can be used as an alternative to the will in British Columbia. The popularity of such use may, however, be limited by Canada's income tax laws as well as provincial tax laws. The resistance of the legal community to new ideas may also reduce the possible use of the revocable trust as an alternative to the will.Law, Peter A. Allard School of
Graduate
6
Pascoe, Susan. "Significance for trusts of land of some key aspects of the Trusts of Land and Appointment of Trustees Act 1996." Thesis, King's College London (University of London), 2004. https://kclpure.kcl.ac.uk/portal/en/theses/significance-for-trusts-of-land-of-some-key-aspects-of-the-trusts-of-land-and-appointment-of-trustees-act-1996(df15036a-1fed-4b2e-81aa-899629e9495e).html.
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Balden, Laurette Ena. "Sorgsaamheidsplig van trustees met betrekking tot trustbeleggings : 'n regsvergelyking tussen die Suid-Afrikaanse- en Engelse reg / deur L.E. Balden." Thesis, North-West University, 2004. http://hdl.handle.net/10394/1038.
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It is settled law that the trustee of any trust is unequivocally charged with the
duty to invest the assets of the trust. However, in south Africa in the past, this
duty has been qualified, with avoidance of risk seen as the trustee's number
one priority when investing. The legislature and the judiciary focused on
providing safeguards for beneficiaries and trustees were to avoid all risk to the
capital of the trust. This reflected the attitude of the 19th and first half of the
20th century when the value of money had remained steady over long periods
and inflation was non-existent.
However, changes began to occur in world economics, such as the devaluing
of currencies and progressive inflation. Despite these harsh economic
realities, the courts continued for some considerable time to favour investment
in interest-bearing securities.
Most of the time trustees erred on the side of caution, following the judiciary's
lead. Unfortunately, as it will be pointed out, this meant that the trustees were
blind to their primary task, which is and always has been, to do the best for
the beneficiaries. Trustees will have to expose the assets to at least some
risk in order to outperform inflation, as the traditional investments are no
longer suitable. This change in investment thinking was confirmed in South
Africa in Administrators, Estate Richards v Nicol and Another 1999 1 SA 551
(SCA).
Every trustee is, therefore, faced with a dilemma when engaging in
investment decision making. He or she is under a duty to invest with the
minimum of risk and also to balance the interests of competing beneficiaries.
The trustee is under a duty to balance the risk against the rewards, always
bearing in mind that he or she must "preserve the trust fund rather than
overtly seek its advancement".
Any exercise of the duty to invest will be limited by the provisions contained in
the trust instrument as well as those provided for by statute, particularly the
duty of care.
Change occurred in English Trust Law with the introduction of the Trustee Act,
2000. The Trustee Act removes the constraints of the previous legislation and
imposes positive obligations on trustees in their place, which reflect the reality
of modern investment practices. Under section 1 of the Trustee Act a new
uniform duty of care is created to guide trustees when performing their
functions under the Act or a trust instrument. This uniformity is aimed at
providing certainty and consistency in respect of the standard of competence
and behaviour expected of trustees in all situations. The statutory duty of
care is founded on the premise that there is a baseline standard of care
expected of all trustees when investing trust assets. This standard is that of
the "reasonable trustee", as referred to in section 1 (1 ) of the Trustee Act.
The law in South Africa does not provide sufficient guidance for trustees,
particularly in the area of trustee investment. It could certainly benefit from
the sort of review that led to the changes in the English law.Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2006.
8
Ashdown, Michael J. "The rule in Re Hastings-Bass." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:b63ddd3f-1762-41b2-8c6b-e3c4c1c2b711.
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The rule in Re Hastings-Bass is an equitable control on the exercise of powers by trustees. It has developed without satisfactory explanation of its doctrinal basis, resulting in uncertainty as to its scope and application. In Pitt v Holt [2011] EWCA Civ 197 the Court of Appeal began to remedy these defects by deciding that the rule is founded on a trustee’s duty properly to consider the exercise of a power. This thesis argues, first, that Pitt is right to understand the Re Hastings-Bass rule as premised on the duties of trustees, and not on the exercise of a power producing an unintended result. This accords with the reasoning of earlier cases on the rule, and is also consistent with House of Lords authority on fiduciary powers and judicial non-interference in trustees’ decision-making. This duty is not a ‘fiduciary’ duty, or an aspect of the trustee’s duty of care, but is an independent incident of the office of trustee. Secondly, this analysis of the Re Hastings-Bass rule facilitates exposition of its important features: the concept of ‘relevant consideration’ must be carefully circumscribed; the purported exercise of a power in breach of the rule is voidable, not void; the rule does not apply to purely personal powers, or to administrative powers; there are no special rules for pension trusts or the use of the rule to mitigate liability to taxation; trustees can usually avoid a breach of duty by taking professional advice; and in some circumstances, those professional advisers can incur liability to the trust beneficiaries. Finally, the relationship between the Re Hastings-Bass rule and fraud on a power is examined. It is argued that the analogy between the two doctrines is not sound, and that there is reason to doubt aspects of the orthodox account of fraud on a power.
9
Gold, Martin Lionel. "Fiduciary finance and the pricing of financial claims a conceptual approach to investment /." Access electronically, 2007. http://www.library.uow.edu.au/adt-NWU/public/adt-NWU20070927.131807/index.html.
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Brakeville, Sue Lockhart Klass Patricia Harrington. "The roles and responsibilities of trustees related to endowment management and development at specialized colleges of nursing." Normal, Ill. Illinois State University, 2001. http://wwwlib.umi.com/cr/ilstu/fullcit?p3006615.
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Thesis (Ph. D.)--Illinois State University, 2001.Title from title page screen, viewed May 2, 2006. Dissertation Committee: Patricia Klass (chair), Edward Hines, David Strand, Susan Winchip. Includes bibliographical references (leaves 78-82) and abstract. Also available in print.
11
Rotman, Leonard Ian. "Duty, the honour of the Crown, and uberrima fides, fiduciary doctrine and the crown-native relationship in Canada." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1993. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp04/MQ39228.pdf.
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12
Smith, James Ronald. "The development of a written policy and corresponding procedures for funding irrevocable and revocable trusts by donors with charitable intent toward Southern Baptist causes assisted by the staff of the Baptist Foundation of Oklahoma." Theological Research Exchange Network (TREN), 1993. http://www.tren.com.
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13
Lötter, Therésilda Sieglinde. "The continued viability of the discretionary Inter vivos trust as an instrument for estate planning." Thesis, Rhodes University, 2007. http://hdl.handle.net/10962/d1006148.
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The purpose of this study is to determine whether a discretionary inter vivos trust is still an effective instrument for estate planning. The process of estate planning, the role the trust plays in it and the background to the trust are described. The taxability and tax saving opportunities when the trust are utilised are discussed in the light of the Estate Duty Act, 45 of 1955, the Income Tax Act, 58 of 1962 (including the Eighth Schedule thereof) and the Transfer Duty Act, 40 of 1949. The opinions of tax and legal authorities in articles and relevant case law are also discussed. The impact of the "letter of wishes" on the stipulations of the trust deed is examined. Amendments to the Income Tax Act have placed a limit on the use of a trust for estate planning through a number of anti-avoidance measures, the introduction of a capital gains tax (in the Eighth Schedule) and the imposition of a high tax rate. The increase in the deduction granted in arriving at the dutiable amount of an estate, in terms of section 4A of the Estate Duty Act, from R1 500 000 to R2 500 000 has imposed a further limit on the use of the trust as an instrument in estate planning. The research demonstrates that, notwithstanding the amendments to the Income Tax Act, the trust still is a viable instrument, mainly because the trust operates as a conduit and because of its potential use in dividing taxable income amongst a number of beneficiaries. The stipulations included in the trust deed and the "letter of wishes" (if one exists), must be thought through carefully when estate planning is done, as it can give rise to the application of the general and specific anti-avoidance provisions as included in sections 7 and 103 of this Act. The research also concludes that, in assessing the effectiveness of the trust as an instrument in tax planning, the disadvantage of paying the higher transfer duty when the immovable asset is transferred to the trust should be weighed up against the possible saving in income tax and estate duty at a later stage. It is also clear that most assets owned by the trust are tax neutral, whilst many of the amendments under discussion deal with the taxability of trust income. The quantitative considerations underlying the use of the trust as part of the estate plan, remain unchanged. The research concludes by providing a framework of quantitative and qualitative criteria that can be used by an estate planner to determine whether it will be advantageous to transfer an asset to the trust to achieve the objectives of the estate plan.
14
Lenders, Rudolf. "Treuhand am Gesellschaftsanteil : die Einbindung des Treugebers in das gesellschaftliche Organisationsgefüge /." Frankfurt am Main : Lang, 2004. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=012871747&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Naidoo, Loganathan. "An evaluation of the use of testamentary and Inter vivos trusts as estate-planning vehicles and the development of holistic estate-planning models involving the use of these trusts." Thesis, Rhodes University, 2013. http://hdl.handle.net/10962/d1008100.
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Trusts are subject to multiple fOl1lls of legislative regulation dealing with taxation and governance. Trusts were widely used by planners as taxavoidance shelters. Tax legislation was amended to subject trusts, other than special trusts as defined, to the highest income tax rate of forty percent, in tel1llS of section 5(2) of the Income Tax Act, 58 of 1962. The inter vivos trust is also subject to a wide range of anti-avoidance measures, including those contained in sub-sections (3) to (8) of section 7 of the Income Tax Act and Part X of the Eighth Schedule to the Act, as well as the general anti -avoidance measures in section 103. These measures impact negatively on the use of trusts for estate-planning purposes. The research objective was to evaluate the use of testamentary and inter vivos trusts for estate-planning purposes and to develop a holistic estate-planniD.g model incorporating these planning instruments. Both the testamentary trust and the inter vivos trust were evaluated against broad principles of effective estate planning and the taxes and duties applicable to them. The research also reviewed the writings of financial planners on various techniques and models used for estate planning, as wells as case studies documented in the literature. The research developed and evaluated holistic estate-planning models incorporating testamentary trusts and inter vivos trusts, respectively. By neutralizing the effects of various taxes and duties, it was demonstrated that it is possible to develop an estate plan that satisfies most of the requirements of effective estate planning.
16
Stafford, Rowan Bell. "A legal-comparative study of the interpretation and application of the doctrines of the sham and the alter-ego in the context of South African trust law: the dangers of translocating company law principles into trust law." Thesis, Rhodes University, 2011. http://hdl.handle.net/10962/d1003210.
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This thesis analyses the doctrines of the sham and the alter-ego and their application to the law of trusts in South Africa. Following an initial examination of the historical development of the law of trusts in English law and the principles of equity law, the study focuses on the current legal status of the trust inter vivos in South Africa and the similarities to its English forerunner. The work traces the sham doctrine back to its origins in English law, where the term “sham” was first used in the context of fraud and dishonesty in cases involving matters arising from hire-purchase agreements, and explains how it gradually began to find its place in the law of trusts. During the exploration, the work highlights the cornerstone of the sham doctrine’s development, the Snook test, which in effect became the internationally accepted guideline for any sham trust enquiry. In terms of the alter-ego doctrine, the work highlights the birth of the principle in Australian law and the doctrine’s immediate reception into other common law jurisdictions and its resultant development. The growth, maturity and popularity of the doctrines are key to the thesis and, in the course of the investigation, the study provides a legal-comparative analysis of the treatment of the doctrines in the context of trusts against that in other common law countries. The study then shifts its focus to South Africa’s interpretation and application of these doctrines in trust law, and reveals the erroneous judicial development in which the courts have in some instances mistakenly replaced the sham doctrine with the company law doctrine of piercing the corporate veil or, in other instances, have erroneously conflated the two trust doctrines. The results highlight a breach of a fundamental rule observed overseas – the “no half way house” rule, which specifically cautions against South Africa’s chosen direction when allowing the lifting of a trust’s veil. The study closes with suggestions as to how the country could reconcile the problems underlined in the thesis by means of law reform, as well as offering practical advice for settlors, trustees and beneficiaries, the core of which is given in the handbook that accompanies this thesis.
17
Du, Plessis Izelle. "A South African perspective on some critical issues regarding the OECD model tax convention on income and on capital, with special emphasis on its application to trusts." Thesis, Stellenbosch : Stellenbosch University, 2014. http://hdl.handle.net/10019.1/95878.
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Thesis (LLD)--Stellenbosch University, 2014.ENGLISH ABSTRACT: Trusts are used for a variety of purposes, both in South Africa and abroad. Like so many other entities, trusts often do not function only in one jurisdiction and may therefore be exposed to international double taxation. South Africa, like most other states, enters into bi-lateral double taxation treaties, to limit the effects of international double taxation. Most of these treaties are based on the OECD Model Tax Convention on Income and on Capital (the OECD MTC). The South African trust is a unique creature. It is not based on the dual ownership concept on which most common law trusts are based, yet, it is not a juristic person either. The question that this research aims to address is how South Africa will interpret and apply certain provisions of the OECD MTC to trusts. Although the South African position is investigated, it is compared to the positions of the United Kingdom, Canada and the Netherlands. The dissertation starts with an analysis of the trust law in each of the relevant states, followed by an overview of the taxation regime governing trusts (and the parties thereto) in each state. The status of double taxation treaties and their interpretation are examined before certain critical provisions of the OECD MTC are analysed to determine how South Africa will apply these provisions to trusts. Hence it is explored whether a trust will be regarded as a person, whether it may be a resident and a beneficial owner for purposes of the OECD MTC. Furthermore, possible solutions for conflicts of attribution in the application of double tax conventions to trusts are investigated. The dissertation concludes that South Africa will regard a trust as a person for purposes of the OECD MTC. Moreover, some types of trusts may be viewed as residents and as beneficial owners for purposes of the OECD MTC. The solution proposed in the OECD’s Partnership Report should be applied to resolve conflicts of attribution involving trusts.
AFRIKAANSE OPSOMMING: Trusts word vir ‘n groot verskeidenheid doeleindes gebruik, nie net in Suid-Afrika nie, maar ook in die buiteland. Net soos baie ander entiteite funksioneer trusts baie keer nie net in een jurisdiksie nie. Trusts word dus ook blootgestel aan internasionale dubbelbelasting. Soos die meeste ander state, sluit Suid-Afrika dubbelbelastingooreenkomste om die effek van internasionale dubbelbelasting te beperk. Die meeste van hierdie ooreenkomste is gebaseer op die OECD Model Tax Convention on Income and on Capital (die OECD MTC). Die Suid-Afrikaanse trust het ‘n unieke aard. Dit is nie gebaseer op die konsep van verdeelde eiendomsreg waarop die meeste gemeenregtelike trusts gebasseer is nie, maar tog is dit ook nie ‘n regspersoon nie. Die vraag wat hierdie navorsing probeer beantwoord is hoe Suid-Afrika sekere bepalings van die OECD MTC sal interpreteer en toepas op trusts. Alhoewel die Suid-Afrikaanse posisie ondersoek word, word dit deurgaans vergelyk met die posisie in die Verenigde Koningkryk, Kanada en Nederland. Die proefskrif begin met ‘n analise van die trustreg in elk van die betrokke state en word gevolg deur ‘n oorsig van die belastingstelsel wat trusts (en die partye daartoe) belas in elk van die state. Die status van dubbelbelastingooreenkomste en hul interpretasie word ondersoek voordat sekere kritiese bepalings van die OECD MTC geanaliseer word om vas te stel hoe Suid-Afrika hierdie bepalings sal toepas op trusts. Daar word dus ondersoek of ‘n trust beskou sal word as ‘n persoon, of dit ‘n inwoner en ‘n uiteindelik geregtigde kan wees vir doeleindes van die OECD MTC. Voorts word moontlike oplossings vir toerekeningskonflikte in die toepassing van dubbelbelastingooreenkomste op trusts, ondersoek. Die proefskrif kom tot die gevolgtrekking dat in Suid-Afrika die trust beskou sal word as ‘n persoon vir doeleindes van die OECD MTC. Verder sal sommige tipes trusts gesien word as inwoners en as uiteindelik geregtigdes vir doeleindes van die OECD MTC. Die oplossing voorgestel in die OECD se Verslag oor Vennootskappe behoort toegepas te word om toerekeningskonflikte op te los.
18
Reid-Bunch, Jan. "Critical leadership traits and characteristics of rural Mississippi community college presidents for the 21st century." Diss., Mississippi State : Mississippi State University, 2006. http://library.msstate.edu/etd/show.asp?etd=etd-07072006-160405.
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Van, Hedel Johanna Henrïette. "Towards a European ius commune - what lessons can we learn from Quebec's mixed legal system?" Thesis, McGill University, 2004. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=82673.
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We are witness today, within a context of an increasingly integrated European Union, to the making of a new common legal order which is that of the European Community. This new ius commune Europaeum will have to be based on legal foundations that can be adhered to by all member states. In this perspective, it is indispensable to investigate whether domestic legal systems of the member states are able to adopt legal concepts of other member states without undermining their cohesive natures. Only then will it be possible to build the emerging ius commune on a conceptual legal framework, which is not to be perceived as a Fremdkorper in the participating states. The present thesis analyzes how Quebec's civilian jurisdiction adopted the common law concepts of the trust and unconscionability, in order to answer the question whether, and if so how, European civil law jurisdictions may adopt common legal concepts and yet remain cohesive.
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Nel, Ebenhaeser Cornelis. "The Business Trust and its role as an entity in the financial environment." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1020175.
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The trust figure in South Africa has undergone an interesting process of evolution during the last century – from a mere gratuity or private tax evasion tool to a proper family protection, business entity, investment, and structured finance vehicle. Its flexibility and multi-functionality positioned the trust as an ideal legal institution for many innovative ideas in the search for holistic business structures, economic empowerment transactions, general estate planning and risk protection initiatives, and ultimately, its application as financial instrument and structured finance entity. The development of both traditional and synthetic securitisation schemes in South Africa has been investigated, with some emphasis on the application of the special purpose institution, which may be in trust form. It is submitted that the application of the trust figure has developed without any significant contribution from the local legislator. A sound legal and regulatory framework is crucial for the creation of a strong future environment for legal and financial vehicles. The question is, however, whether the current South African legal framework for the application of the business trust, and also as a vehicle for financial instruments, is adequately sound and robust in light of the standards set in the international business and financial environment. It is submitted that the hybrid nature of the South African legal landscape is conducive for the development of sound legal systems in an ever-changing legal and economic reality. It is further submitted that in the development of proper legal frameworks, South Africa should position itself particularly in its context as a Southern African developing democracy. The South African trust development is compared with that of some foreign jurisdictions as well as with international conventions and treaties of relevance. Some recommendations for necessary changes are made and it is submitted that such future development of the trust figure should not take place haphazardly, but within the context of a structured regulatory model.
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Ehlers, Anton. "Die geskiedenis van die trustmaatskappye en eksekuteurskamers van Boland Bank Beperk tot 1971." Thesis, Stellenbosch : Stellenbosch University, 2002. http://hdl.handle.net/10019.1/52776.
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Dissertation (PhD)--Stellenbosch University, 2002.ENGLISH ABSTRACT: The history of the trust companies and boards of executors of Boland Bank Limited represents a case study of the process through which these rural institutions, as part of the broader trust movement in South Africa, established themselves as an integral and respected part of the local financial and social structure of the communities in which they operated. It also represents a case study of the pressures to which these local rural trust companies were subjected by the changing South African financial environment of the 20th century and of the way they reacted to absorb and counter these pressures. Their reactions and counter-measures were attempts, on the one hand, to hold on to and promote, and on the other hand, to get rid of and discard their pasts. The history of Boland Bank Limited to 1971 represents a case study of the trials and tnbulations; the successes and failures of this process. Paarl African Trust Company Limited (PAT) and African Mutual Trust and Assurance Company Limited (AMT), the two leading role players in the establishment of Boland Bank Limited, was founded in 1900 as a result of the anti- British feelings generated among a section of the Afrikaners in the Cape Colony during the Anglo Boer War. These feelings of nationalism manifested in the Afrikaners' aspiration towards greater economic self-reliance which in the case of PAT and AMT led to the establishment of two Afrikaner-controlled local rural trust companies. These two institutions laid the foundation of a mainly Cape based tradition oflocal rural trust companies with a predominantly Afrikaans character. In the first half of the 20th century these institutions established themselves as dynamic local rural financial institutions serving the financial needs of the predominantly agricultural economies in which they functioned. As an integral part of their local communities, they were respected as stabilizing economic and social agents, -a respect demonstrated by the local inhabitants refering to these institutions as "my Kamer" (my Board). The changed nature of the economic system and climate of the post war (Second World War) period in tandem with the tendency towards stricter state control over the monetary and financial system and institutions, pressurized small local :financial institutions like trust companies and boards of executors to show a profit. In this regard PAT and AMT were no exception and together with other similar trust companies were in danger of becoming outdated financialnational monuments. Against this background PAT and AMT took the lead in the early sixties in a successful amalgamation initiative which eventually culminated in the formation of Boland Bank Limited. This process included 17 institutions of which 16 were local rural trust companies and boards of executors and created the potential for regaining their lost dynamic nature. These dynamics would eventually carry them into the 21st century.
AFRIKAANSE OPSOMMING: Die geskiedenis van die trustmaatskappye en eksekuteurskamers van Boland Bank Beperk verteenwoordig 'n gevallestudie van die proses waardeur die plattelandse instellings as deel van die breer trustbeweging in Suid-Afrika hulself as 'n integrale en gerespekteerde deel van die plaaslike finansiele en sosiale struktuur van die gemeenskappe waarbinne hulle opgetree het, gevestig het. Dit verteenwoordig ook 'n gevallestudie van die druk waaraan die veranderende Suid-Afrikaanse finansiele omgewing van die 20ste eeu die plaaslike plattelandse trustmaatskappye onderwerp het en die wyse waarop hulle gereageer het in 'n poging om die druk te absorbeer en te opponeer. Hulle reaksies en teenmaatreels was 'n mengsel van pogings om enersyds die status quo ten opsigte van hulle manier van dink en doen te handhaaf en andersyds dit te verwerp of van ontslae te raak. Die geskiedenis van Boland Bank tot 1971 verteenwoordig 'n gevallestudie van die ervaringe en wedervaringe, die suksesse en ook die mislukkings van die proses. Paarl African Trust Company Limited (PAT) en die African Mutual Trust and Assurance Company Limited (AMT) , die twee hoofspelers in die daarstelling van Boland Bank Beperk, is in 1900 gestig as die resultaat van die anti-Britse gevoel wat deur die Anglo-Boereoorlog onder 'n deel van die Afrikaners in die Kaapkolonie gegenereer is. Hierdie gevoel van nasionalisme het gemanifesteer in die Afrikaners se strewe na groter ekonomiese selfstandigheid wat in die geval van PAT en AMT gelei het tot die stigting van twee Afrikanerbeheerde plaaslike plattelandse trustmaatskappye. Die twee instellings het die grondslag van 'n hoofsaaklik Kaaps gebaseerde tradisie van plaaslike plattelandse trustmaatskappye en eksekuteurskamers met 'n oorwegende Afrikaanse karakter gele. In die eerste helfte van die 20ste eeu het die instellings hulself as dinamiese plaaslike plattelandse finansiele instellings gevestig, wat voorsien het in die finansiele behoeftes van die oorheersend primere landbou-ekonomie waarbinne hulle gefunksioneer het. As 'n integrale deel van hulle plaaslike gemeenskappe is bulle as stabiliserende ekonomiese en sosiale agente gerespekteer. Dit was 'n respek wat gedemonstreer is deur die plaaslike inwoners se verwysing na die instellings as "my Kamer". Die veranderde aard van die ekonomiese stelsel en klimaat van die naoorlogse (Tweede Wereldoorlog) periode in tandem met die tendens van strenger staatsbeheer oor die monetere en finansiele stelsel en instellings het druk geplaas op die windsgewendheid van klein plaaslike finansiele instellings soos trustmaatskappye en eksekuteurskamers. In die verband was PAT en AMT geen uitsondering nie en het hulIe saam met ander soortgelyke trustmaatskappye die gevaar geloop om oudmodiese finansiele nasionale monumente te word. Teen hierdie agtergrond het PAT en AMT in die vroee sestigerjare die leiding geneem in 'n suksesvolle amalgamasie-inisiatief wat uiteindelik in die stigting van Boland Bank Beperk gekulmineer het. In die proses is 17 instellings, waarvan 16 plaaslike plattelandse trustmaatskappye en eksekuteurskamers was, ingesluit en daardeur die potensiaal geskep om hulle verlore dinamika te herwin, Dit was 'n dinamika wat hulle uiteindelik tot in die 21ste eeu sou dra.
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Pretorius, F. J. (Frederik Johannes). "n Teoretiese en praktiese ondersoek na 'n betroubare en toepaslike boedelbeplanningsmodel." Thesis, Stellenbosch : Stellenbosch University, 2004. http://hdl.handle.net/10019.1/50045.
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Thesis (LLM)--University of Stellenbosch, 2004.ENGLISH ABSTRACT: This study deals with a theoretical and practical investigation of the subject discipline of estate planning in order to identify a reliable and appropriate estate planning model. For purposes of this study, the investigation is restricted to the development of such a model in respect of a person within the niche of an average salary earner with the focus on an appropriate financial planning in respect of his death. An investigation is conducted into the basis from which the subject emerged and developed. It is determined that this basis is the method of successionand that it also forms an integral part of any proposed estate planning. Relevant principles and the methods of succession which were in force in the Roman, Roman-Dutch and English law of succession are analysed. Through the historic development, against the background of these systems, a link is made to the South African law of successionand the position in terms of the South African law is determined. The theoretical basis of the subject discipline is also laid down. The different role players involved are identified in the process and the proposed estate planning process is identified and described. The administration of estates process within the context of the English law is compared with the same process in the context of the South African law through a comparative study. This investigation is limited to those aspects of the administration of estates process important for purposes of estate planning, especially in view of the influence that the rules of the Englishlaw had on the South African law in respect of this process. Practical problems currently experienced by trust companies in respect of the administration of estates are also identified and analysed. These problems also indicate the need for the identification of a reliable and appropriate estate planning model. The identification of an appropriate estate analysis model is identified as an essential control mechanism for the proposed estate planning model. This model is furthermore expanded in order to point out the problem areas in respect of different scenarios with a determined conventional family construction as the basis for the analysis. Available estate planning instruments and techniques are identified as aids in order to facilitate the testator's estate plan by virtue of the proposed estate planning model. Testamentary mechanisms are distinguished from inter vivos mechanisms and applicable legislation is discussed. A reliable and appropriate estate planning model is identified, bearing in mind the results of the researchconducted. This study is concluded with an adjudication and consolidation of the results of the research with a special reference to the implementation phase of an estate plan and the frequent revision thereof.
AFRIKAANSE OPSOMMING: Hierdie studie handeloor 'n teoretiese en praktiese ondersoek van die vakdissipline boedelbeplanning met die oog daarop om 'n betroubare en toepaslike boedelbeplanningsmodel te identifiseer. Die ondersoek word vir doeleindes van hierdie studie beperk en afgebaken tot die ontwikkeling van so 'n model vir 'n persoon wat homself in die nis van die gemiddelde salaristrekker bevind met die fokus op 'n toepaslike finansiële beplanning vir die intrede van dié se dood. Daar word ondersoek ingestel na die basis waaruit dié vakdissipline ontstaan en ontwikkel het. Daar is gevind dat die metode van erfopvolging daardie basis uitmaak en ook 'n integrale deel vorm van enige boedelbeplanningwat onderneem word. Relevante beginsels en die metodes van erfopvolging soos dit in die Romeinse, Romeins- Hollandse en Engelse erfreg gegeld het, word ontleed. Met die historiese ontwikkeling in hierdie stelsels as agtergrond, word daar by die Suid-Afrikaanse erfreg aangesluit en die posisie volgens die Suid- Afrikaanse reg bepaal. Die teoretiese grondslag van die vakdissipline word ook vasgelê. Die verskillende rolspelers betrokke by die voorgestelde boedelbeplanningsproses word geïdentifiseer en die voorgestelde boedelbeplanningsprosesword beskryf. Die boedelberedderingsprosesword ook binne die konteks van die Engelse reg met dié proses binne die konteks van die Suid- Afrikaanse reg deur 'n regsvergelykende studie vergelyk. Hierdie ondersoek word ook beperk tot daardie aspekte van die beredderingsproses wat vir doeleindes van boedelbeplanning van belang is, juis in die lig van die invloed van die Engelsregtelike reëls op die Suid-Afrikaanse reg ten aansien van gemelde proses. Praktiese probleme wat tans tydens die beredderingsproses van bestorwe boedels deur trustmaatskappye ervaar word, word ook geïdentifiseer en ontleed. Hierdie probleme ondersteun ook die behoefte aan die identifisering van 'n betroubare en toepaslike boedelbeplanningsmodel. Die identifisering van 'n toepaslike boedelontledingsmodel word aangetoon as 'n onontbeerlike kontrolemeganisme van die voorgestelde boedelbeplanningsmodel. Hierdie ontledingsmodel word ook uitgebrei om probleemareas ten aansien van verskillende scenario's uit te wys met 'n bepaalde konvensionele gesinskonstruksie as die basis vir die ontledingsmodel. Beskikbare boedelbeplanningsinstrumente en -tegnieke word geïdentifiseer as hulpmiddels om die erflater se toepaslike boedelplan ingevolge die struktuur van die voorgestelde boedelbeplanningsmodel te fasiliteer. Testamentêre meganismes word van inter vivos meganismes onderskei en toepaslike wetgewing word ook bespreek. Na aanleiding van die resultate van hierdie navorsing word 'n betroubare en toepaslike boedelbeplanningsmodel geïdentifiseer. Die studie word afgesluit met 'n beoordeling en samevatting van die resultate van die navorsing met 'n spesifieke verwysing na die implementeringsfase van 'n boedelplan en die gereelde hersiening daarvan.
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De, Klerk Eben. "A critical analysis of the factors that influence the sustainability of attorney's client protection funds : a Namibian perspective." Thesis, Stellenbosch : Stellenbosch University, 2005. http://hdl.handle.net/10019.1/50243.
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Thesis (MBA)--Stellenbosch University, 2005.ENGLISH ABSTRACT: The cornerstone of the legal profession is the trust harboured by clients when depositing monies with legal firms. A few regulations usually exist to protect trust monies. In the absence of a client protection fund, a client has no insurance against theft of trust monies. Most countries have come to realise the importance of employing a client protection fund to reimburse victims of theft in order to protect the integrity of the legal profession. Client protection funds are operated on different business models and a broad overview of the funds of New York, British Columbia, New Zealand and Botswana indicated that such funds are not able to compensate all proven claims without enforcing limitations. There is currently no benchmark whereby client protection funds can assess their effectiveness and sustainability. A standard for evaluating these funds is created based on the following criteria common to all funds: the purpose of a fund, the status of a fund, proper management of the fund, the methods which a fund employs to limit liability, the financial strength and sustainability of a fund, the rights of a fund where claims are awarded and the preventative measures employed by a fund. After evaluation of these funds it became clear that all of them are financially unsustainable if they were to pay proven claims without imposing limitations on their liability. The Namibian fund appears to be the most sustainable fund and was also used as the benchmark in one of the criterion of the evaluation model. A more critical study of the Namibian fund indicated that it would in future become less sustainable as the growth rate in trust deposits exceeds the growth rate of the fund's reserves. After a SWOT analysis it is suggested that the Namibian fund continues its current preventative measures, as same is likely the reason why an insignificant amount of thefts occurred over the past 15 years, and should focus on increasing income by negotiating better agreements with banks and employ a dedicated inspectorate, not only to ensure compliance with such agreements, but provide the fund with annual reports on each firm's level of compliance with statutory regulations on trust accounting.
AFRIKAANSE OPSOMMING: Die hoeksteen van die regsprofessie is die vertroue wat kliënte in prokureurs plaas om trustgeld te bewaar. 'n Basiese stel boekhou regulasies is al wat normaalweg dien as beskerming van trustgeld. In die afwesigheid van 'n getrouheidsfonds het 'n klient geen versekering teen diefstal van trustgelde nie. Meeste lande het reeds die waarde van 'n getrouheidsfonds besef as beskermingsmeganisme van die integriteit van die professie. Getrouheidsfondse is baseer op verskillende besigheidsmodelle en 'n breë oorsig van die fondse van New York, British Columbia, New Zealand en Botswana dui daarop dat sulke fondse nie in staat is om alle eise te vergoed sonder om daadwerklike beperkinge op hul verpligtinge te plaas nie. Daar bestaan huidiglik geen universele maatstaf waaraan fondse hul effektiwiteit en volhoubaarheid kan meet nie. 'n Eenvormige evaluasie model is ontwerp wat gebruik maak van die volgende ooreenstemmende kenmerke van alle fondse: die doel van die fonds, die status van die fonds, die behoorlike bestuur van die fonds, die metodes wat die fonds aanwend om verpligtinge te beperk, die finansiële vermoë en volhoubaarheid van die fonds, die regte van die fonds na betaling van eise en die voorkomende maatreëls wat die fonds aanwend. Na evaluasie van die bogenoemde fondse is dit duidelik dat sulke fondse nie finansieel volhoubaar sal wees as hulle alle goedgekeurde eise ten volle sou uitbetaal sonder die afdwing van beperkende maatreëls nie. Die Namibiese fonds blyk die mees volhoubare fonds te wees en word ook as maatstaf gebruik in een van die kriterium van die evaluasie model. By nadere ondersoek van die Namibiese fonds is vasgestel dat die fonds in die toekoms minder volhoubaar sal raak omdat die groeikoers in trust deposito's hoër is as die groeikoers van die reserwes van die fonds. Na 'n SWOT-analise word voorgestel dat die Namibiese fonds moet volhart in die uitvoering van voorkomende maatreëls en ook inkomste moet verhoog deur beter ooreenkomste met banke aan te gaan. 'n Toegewyde ondersoek afdeling sal verseker dat firmas sulke ooreenkomste nakom, asook aan die fonds raporteer oor firmas se nakoming van statutêre reëls.
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張阿林. "中國大陸家事信託法律問題研究 = Study on the legal issues of family trust in China Mainland." Thesis, University of Macau, 2018. http://umaclib3.umac.mo/record=b3953470.
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吳一沙. "論我國公益信託的監管 :以 "中華人民共和國信託法" 為基礎 = The supervision of public trust in China : based on the PRC Trust Law." Thesis, University of Macau, 2016. http://umaclib3.umac.mo/record=b3534538.
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Azevedo, Cláudia Patrícia Borges de. "Cessão fiduciária de direitos sobre coisas móveis no âmbito do mercado financeiro e de capitais." reponame:Repositório Institucional do BNDES, 2010. https://web.bndes.gov.br/bib/jspui/handle/1408/10799.
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Por meio da adaptação de um velho instituto jurídico, o negócio fiduciário, foi introduzida, no ordenamento jurídico pátrio, a cessão fiduciária de direitos, com vistas a atender a necessidade de garantias mais eficazes para assegurar os negócios empresariais. A cessão fiduciária de direitos sobre coisas móveis, objeto deste trabalho, encontra-se disciplinada no artigo 66-B da Lei n 4.728, de 14/07/1965, introduzido pela Lei n 10.931, de 02/08/2004, e representa um novo mecanismo de garantia aos contratos celebrados no âmbito do mercado financeiro e de capitais.Bibliografia: p. 188-197.
Inclui notas de rodapé.
Dissertação (mestrado) - Faculdade de Direito da Universidade de São Paulo, Departamento de Direito Comercial, São Paulo, 2010.
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Haffejee, Mahomed Cassim. "Trusts and offshore trusts." Thesis, 2002. http://hdl.handle.net/10413/10400.
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Zener, Naomi Elana. "Social investing by private trustees." 2005. http://link.library.utoronto.ca/eir/EIRdetail.cfm?Resources__ID=362408&T=F.
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Mthethwa, Mthokozisi Rodney. "The common law and taxation of trusts in South Africa in the twenty-first century : with emphasis on business trusts." Thesis, 2004. http://hdl.handle.net/10413/1683.
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The purpose of this technical report is not to establish a definitive answer as to the validity and suitability of a business trust as a new form of a business entity, but is aimed at addressing the uncertainties that have emanated from the use of a traditional trust structure as a business vehicle. A critical analysis of the recommendations made by the Margo Commission that the taxation treatment of business trusts and companies should be aligned in order to avoid the tax abuse of business trusts will also be undertaken. Globally trusts, especially discretionary inter vivos trusts, are formed purely for carrying on a business including owning and letting of property. However, there are divergent views whether a trust can be used for commercial purposes. Honore (1985 : Preface) is of the opinion that "The use of trusts for business purposes - no new phenomenon, since testators long since saw the advantage of setting up a trust to carry on their enterprises after their death - raises complex issues of control. It should not be assumed without thorough investigation of the past record and future possibilities of business trusts that there is no room for a tertium quid between the commercial partnership and the incorporated company". Wunsh (1986 : 561 - 82) says that a business trust provides a method of setting up or continuing a business alternative to an incorporated company or close corporation (Honore, 1992 : 74). In general a business trust is a pure trust the main object of which is to carry on a business enterprise with a view to making a profit and distributing it amongst the beneficiaries. Notwithstanding the fact that the Trust Property Control Act which controls all forms of trusts was enacted in 1988, Honore (1992 : Preface) is of the view that business trusts call for some further regulation, but not for the full panoply detailed in the Companies Act or even the Close Corporations Act. The analysis of the recommendation of the Margo Commission to align the taxation treatment of business trusts and companies shows that business trusts are not close substitutes for companies as they are 'pure trusts' formed purely for protecting the founder's business for the benefit of the beneficiaries. Although there may be similarities, there are also dissimilarities between business trusts and companies. Further, there are no compelling reasons for changing the current tax regime since taxing business trusts like companies will not necessarily improve equity or efficiency and particularly prevent perceived tax abuse. Tax abuse should be addressed at its source through better enforcement action to limit tax abuse opportunities. In conclusion it will be shown that although a business trust can at present provide certain tax advantages while still preserving the limited liability of the trustees, legislation is gradually being introduced which will iii result in trading trusts being taxed on the same basis as companies. However, the researcher submits that the legislature will not be solving the problem by aligning the tax treatment of business trusts and companies.Thesis (M.Com.)-University of Kwazulu-Natal, 2004.
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Legodi, P. K. "Director's fiduciary duty to account for corporate opportunities." Thesis, 2010. http://hdl.handle.net/10386/466.
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Gericke, Jacobus Stefanus. "Die trust as belasting entiteit." Thesis, 2015. http://hdl.handle.net/10210/13198.
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Evans, Julia M. "A Kantian perspective on fiduciary relationships (Immanuel Kant)." 2005. http://link.library.utoronto.ca/eir/EIRdetail.cfm?Resources__ID=362529&T=F.
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Botha, Pieter Stephanus. "Die belasting implikasies van besigheidstrusts." Thesis, 2015. http://hdl.handle.net/10210/14243.
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Goebel, Arno. "The taxation of trusts : an analysis of S 25B and the anti-avoidance provisions contained in S 7 of the Income Tax Act no. 58 of 1962." Thesis, 1999. http://hdl.handle.net/10413/5621.
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Chen, Bin. "Mental Capacity to Transact." Thesis, 2019. https://doi.org/10.7916/d8-xvpf-aa76.
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Elder financial abuse is an alarming problem in this era of aging population. Baby boomers are entering retirement with a higher life expectancy and more wealth than any generation before them. The combination of mental decline and substantial wealth renders many seniors vulnerable to overreach. Empirical studies suggest that financial abuse against seniors is hard to detect and likely prevalent.
In private suits alleging elder financial abuse, courts often apply the mental capacity doctrine to avoid seemingly exploitative contracts, gifts and many other lifetime transactions. The formal rationales for avoidance are that the elderly party to the impugned transaction lacked mental capacity, and that the transaction was inequitable. Moreover, guardians and attorneys who manage property for the elderly may have perverse incentives to exploit their position. Presuming the worst from the property manager, courts and legislatures typically impose onerous fiduciary duties to minimize conflicts of interest and deter misconduct. Orthodox fiduciary law explicitly aims to overdeter.
This Dissertation first argues that the mental capacity doctrine in prevailing American law is ill-suited for the era of aging population. In theory, the doctrine grants a mentally-incapable individual a power to choose whether to avoid her transactions. In reality, that power is usually exercised by a claimant who expects to inherit from the incapable individual. Prevailing doctrinal theories overlook the possibility that the claimant may seek to avoid a transaction to increase her expected inheritance rather than to advance the interests of the incapable individual. The mental capacity doctrine thus poses a heighted risk of avoiding transactions that actually benefited potentially incapable seniors and reflected their testamentary intent. This harms the welfare of many seniors by unduly limiting their ability to benefit their close relatives and friends, reward informal caregiving, and recruit their preferred caregivers.
The mental capacity doctrine can nonetheless be reformulated to offer appropriate protection against elder financial abuse without undue intrusion into close families and personal relationships. In particular, when applied to transactions involving close relatives and friends, the doctrine should be narrow, determinate, and respectful of individual will and preferences.
This Dissertation further argues that orthodox fiduciary law is too strict on most guardians and agents who manage property for the elderly. The problem is that mental or physical decline is common among seniors, but a lack of mental capacity typically stultifies the power to authorize a fiduciary to depart from adherence to strict fiduciary duty. By contrast, mentally-capable individuals are free to discharge those aspects of fiduciary law that they find intrusive and undesirable. In other words, while fiduciary law is mostly a default law when applied to capable individuals, it is a mandatory law when applied to elderly incapable individuals. Harming the welfare of many seniors, mandatory application of fiduciary law tends to stultify the pursuit of valuable other-regarding preferences in close families and personal relationships. Such strict and inflexible application further disregards the presence of intrinsic bonds and informal norms.
To remedy these shortcomings, this Dissertation proposes a substituted-judgment defense to permit those departures from strict fiduciary law that the incapable individual would have authorized if she was mentally-capable. This defense should be made available to close relatives and friends but not to profit-driven professionals. To deter and sanction elder financial abuse by professional guardians and agents, this Dissertation also proposes reforms to harness their reputational concerns.
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David, Vanashree. "The legal obligations of retirement fund trustees in respect of section 37c of the Pension Funds Act 24 of 1956." Diss., 2012. http://hdl.handle.net/10500/8623.
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Prior to the introduction of section 37C into the Pension Funds Act. 24 of 1956, the benefit payable as a result of the death of a member would devolve in accordance with his last will and testament or the provisions of intestate succession. The advent of section 37C brought a statutory regime which expressly excludes freedom of testation and rather looks to the board of a fund to distribute the death benefit. The board may only pay the dependants of a deceased (either factual or legal) or the persons he has recorded on his nomination form. The section relies on the board to exercise its discretion in a manner which results in an equitable distribution of the death benefit notwithstanding that it does not provide any guidelines as to how this is to be achieved. Accordingly, numerous decisions are challenged by the identified beneficiaries because they are unhappy with the manner in which the board exercised its discretion. This results in complaints being lodged with the Pension Funds Adjudicator. Many such complaints should never have arisen or could have been easily solved by a proper exercise of discretion on the part of the board. The problem is that these complaints are adding to an already burdened office. Adequate training and understanding of the obligations of section 37C would probably result in fewer complaints to the Adjudicator. This dissertation examines whether the determinations which have been issued by the Adjudicator in respect of section 37C indicate a need for such training and understanding and, if they do, what possible remedies there might be to cure such a problem. Recommendations arising from this are that trustees must receive training focused on section 37C and proposed practical protocols to assist a board when exercising its duty to make an equitable distribution.Jurisprudence
LL.M.
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Crafford, Carel Pieter. "The feasibility of trust as a generation skipping device based on the amendments to the Income Tax Act and the Davis tax committee's report into wealth taxation as well as the potential effect these may have on trusts." Thesis, 2019. https://hdl.handle.net/10539/29690.
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A research report submitted to the Faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation)Trusts are not as desirable as they once were, and every year they seem to become less so. The reason for their increasing undesirability is the heavy tax burden they carry.
NG (2020)
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Marodi, M. L. "Does freedom of testation supersede the powers of the board of trustees to allocate a death benefit in terms of section 37C of the Pension Funds Act, 24 of 1956?" Thesis, 2015. http://hdl.handle.net/10386/1223.
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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2015Section 37C of the Pension Funds Act was introduced primarily to ensure that death benefits are paid in accordance with the object of the Act and government policy. Its purpose is to make sure that the dependants of the deceased member are not left destitute upon the death of the member. In order to achieve this, the death benefits are placed under the control of the trustees who are tasked with the duty to distribute the benefits equitably among the beneficiaries. According to this section, death benefits do not form part of the deceased’s estate and as a result a beneficiary under the last will and testament of the deceased is not necessarily a beneficiary under section 37C of the Act. The board of trustees will consider a person as a beneficiary if the deceased member has nominated such a person in a valid nomination form. This section therefore overrides the deceased’s freedom of testation because the board of trustees are not bound by the deceased’s wishes as completed in the nomination form. A nomination form is one of the factors which the trustees have to consider in the exercise of their discretion to make an equitable distribution.
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Burne, Warren. "The influence and effect of s 7 (the 'deemed income' provisions), s 25B and the donations tax provisions of the Income Tax Act, and the relevant provisions of the Transfer Duty Act, the Value Added Tax Act and the Estate Duty Act, on the establishment, utilisation and dissolution of testamentary and inter vivos trusts." Thesis, 1999. http://hdl.handle.net/10413/5206.
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The aim of this technical report is to serve as a handy expose of the relevant provisions of various statutes for attorneys, accountants and other advisors who have to deal with the relevant tax laws affecting the establishment, utilisation and dissolution of trusts. The South African Acts which are the subject of this technical report were promulgated on or before 31 December 1998. They are as follows:
• The Income Tax Act, No. 58 of 1962.
• The Transfer Duty Act, No. 40 of 1949.
• The Value Added Tax Act, No. 89 of 1991.
• The Estate Duty Act, No. 45 of 1955.
The principal South African taxes dealt with in this report are as follows:
• Normal Tax.
• Donations Tax.
• Transfer Duty.
• Value Added Tax.
• Estate Duty.Thesis (LL.M.)-University of Natal, Durban, 1999.
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Swart, Rene Louise. "Fiduciary responsibility and responsible investment : definition, interpretation and implications for the key role players in the pension fund investment chain." Thesis, 2012. http://hdl.handle.net/10500/6220.
Full textAbstract:
Since their creation in Europe in the seventeenth century, pension funds have grown to become one of the main sources of capital in the world. A number of role players ultimately manage the pension money of members on their behalf. Accordingly, the focus of this study is on the role players involved in the actual investment of pension fund money. For the purposes of the study, the key role players in the pension fund investment chain are identified as pension fund trustees, asset managers and asset consultants. These role players have a specific responsibility in terms of the service that they ought to provide. One of the key aspects of this dissertation is therefore determining whether their responsibility is a fiduciary responsibility.
The main purpose of the study is, however, to answer one overarching research question:
Does fiduciary responsibility create barriers to the implementation of responsible investment in the South African pension fund investment chain?
Clearly, there are two key terms in this research question, fiduciary responsibility and responsible investment. It is suggested that responsible investment takes at least two forms: a “business case” form1 in which environmental, social and governance (ESG) issues are considered only in so far as they are financially material; and a social form in which ESG issues are considered over maximising risk adjusted financial returns.
Three key questions were asked in order to find qualitative descriptions and interpretations of fiduciary responsibility:
Question 1: Are the key role players in the pension fund investment chain fiduciaries?
Question 2: If so, to whom do the key role players owe their fiduciary duty?
Question 3: What are the fiduciary duties of the key role players in the pension fund investment chain?
It is also suggested that the duty to act in the best interests of beneficiaries could be described as the all-encompassing fiduciary duty. Two main interpretations of thePrivate Law
(LL.M.(Private Law))
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Coetzee, Jacob Petrus. "`n Kritiese ondersoek na die aard en inhoud van trustbegunstigdes se regte ingevolge die Suid-Afrikaanse reg = A critical investigation into the nature and content of the rights of beneficiaries in terms of the South African law of trusts." Thesis, 2006. http://hdl.handle.net/10500/2006.
Full textAbstract:
OPSOMMING
Alhoewel die trustfiguur reeds sedert die 19e Eeu in Suid-Afrika erken word, en as `n suiwer trustfiguur tipeer kan word, is die hantering van die regte van sekere trustbegunstigdes steeds in onsekerheid gehul. Die hoofrede hiervoor is die oorbeklemtoning van die wyse waarop trusts tot stand kom en die onderbeklemtoning van die unieke fidusiêre aard van die trust na oprigting daarvan. In Engeland, Skotland, Sri Lanka, Louisiana en Quebec, waar die suiwer trustfiguur ook aanwending vind, bestaan, in teenstelling met die oënskynlike regsposisie in Suid-Afrika, die moontlikheid van trustbegunstigdes sonder regte glad nie. In hierdie jurisdiksies speel die oprigtingsinstrument `n ondergeskikte rol en ontstaan die regte van trustbegunstigdes ex lege uit hoofde van die trustfiguur as `n vertrouensverhouding sui generis. Alhoewel die Suid-Afrikaanse trustreg die fidusiêre aard van die verhouding tussen trustee en trustbegunstigde erken, word die aard en omvang van die regte wat hieruit voort behoort te vloei nog nie voldoende deur die howe erken nie.
Vertrouensverhoudinge waaruit regte en verpligtinge ex lege voortspruit, is bekend aan die gemenereg en word steeds hedendaags aangetref in verskeie ander vakdissiplines binne die Suid-Afrikaanse reg, waaronder die maatskappyereg. Die suiwer trustfiguur stel verder noodwendig `n vertrouensverhouding daar wat juis daarop gemik is om die regte van trustbegunstigdes te beskerm. Die standpunt word dus ingeneem dat alle trustbegunstigdes in Suid-Afrika derhalwe oor ex lege regte beskik. Daar word aan die hand gedoen dat trustbegunstigdes se regte nie uitsluitlik voortvloei uit hoofde van die tersaaklike oprigtingshandeling nie, maar dat unieke regte ontstaan as gevolg van die onderliggende fidusiêre verhouding wat tot stand kom wanneer, maar ongeag hoe, die trust opgerig word. Kortom: Die fidusiêre verhouding behoort erken te word as eie, onafhanklike bron van trustbegunstigdes se moontlike regte teen die trustee in die geval van trustbreuk.
Nie net is dit `n logiese stap in die ontwikkeling van die gemenereg nie, maar sal dit ook die beskerming van trustbegunstigdes in die Suid-Afrikaanse trustreg op dieselfde voet plaas as trustbegunstigdes in die ander jurisdiksies wat nagevors is. So 'n stap sal bydra tot regsekerheid en nie tot `n wesentlike omwenteling in die Suid-Afrikaanse trustreg en -administrasie lei nie.
SYNOPSIS
Although the trust figure has been recognised in South Africa since the 19th century and can be characterised as a proper trust, uncertainty still prevails regarding the scope and acknowledgement of the rights of some trust beneficiaries. The main reason for this is the over-emphasis of the manner in which trusts are created, and the under-emphasis of the unique fiduciary nature of the trust once it has been established. In England, Scotland, Sri Lanka, Louisiana and Quebec where the proper trust figure is also applied, there is no possibility, contrary to the apparent legal position in South Africa, of trust beneficiaries without rights. In these jurisdictions the instrument used to create a trust plays a subordinate role and the rights of trust beneficiaries originate ex lege by virtue of the trust itself as a relationship of trust sui generis. Although South African trust law acknowledges the fiduciary nature of the relationship between trustee and trust beneficiary, the nature and extent of the rights that should emanate from this relationship are not adequately acknowledged by the courts.Jurisprudence
L.L.D.
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Loubser, Mari. "A case study analysis of the impact of the Davis Tax Committee's First Interim Report on Estate Duty on certain trust and estate planning structures used by South African residents." Thesis, 2016. http://hdl.handle.net/10539/22220.
Full textAbstract:
A research report submitted to the Faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg, in partial fulfilment of the requirements for the degree of Master of Commerce (specialising in Taxation)
Johannesburg, 2016The Davis Tax Committee released their First Interim Report on Estate Duty on 13 July 2015 which contained certain recommendations concerning the way trusts should be taxed which were to act as a deterrent against aggressive estate planning. This report also contained suggested changes to current estate duty legislation. Changes to these recommendations, yet to be published in a second report, were discussed in a webinar by Judge Dennis Davis in December 2015 and the 2016 Budget Review contained additional suggestions with regard to the taxation of trusts. This study constructs case studies to compare the effect of the various recommendations on total taxation and capital preservation in a scenario where assets are held in a South African trust over a period of time, with a scenario where such assets are kept in a South African tax resident’s personal estate. The case studies focus only on high-net-worth trusts and personal estates. The possible double taxation which may occur as a result of levying both estate duty and capital gains tax on death is also briefly considered. The case study results show the punitive effects of the proposed repeal of the s 4(q) estate duty deduction for inter-spousal bequests on the personal estate scenarios and show how several of the new proposals could result in effective capital tax rates in excess of the deemed maximum capital tax benchmark of 15%. This may result in more aggressive estate planning strategies being employed should such proposals be enacted. The report also concludes that the double taxation effect of both estate duty and capital gains tax levied on death is likely to be small on average, although individual high-net-worth estates may be subject to such double taxation in certain cases. Key words: Davis Tax Committee’s First Interim Report on Estate Duty, taxation of South African trusts, South African trusts, South African estate duty, estate planning, double taxation on death, estimate for total capital gains tax collected on death, high-net-worth individuals, inequality in South Africa, wealth tax in South Africa, total taxation in South African trusts, income-splitting in South African trusts, capital preservation in South African trusts, South African trust case study, South African estate duty case study, South African estate planning case study
MT2017
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Pretes, Michael. "Renewing the wealth of nations." Phd thesis, 2005. http://hdl.handle.net/1885/49418.
Full textAbstract:
This thesis explores how capital flows are linked to economic development and
proposes an alternative pathway to enhancing livelihoods in the marginal spaces of
the global economy, drawing on examples from North America and the Pacific. Mainstream theories of development are largely based on European and North American examples, and argue for a progression of developmental stages from agriculture to industry to services, based on a flow of capital from core to periphery. Such theories are not place-specific, and do not reflect the particular conditions of remote and marginal places. In the peripheral spaces of the global economy, investment opportunities
may be limited. An alternative practice is to invest outside the region of capital
generation, through the mechanism of a trust fund. I argue that local development
can be achieved through investing in global financial markets, in core countries,
rather than at the site of capital generation. In this way, local development is not limited to the marginal place where the benefits are to be felt; peripheral capital instead flows into the core to seek out the best investment opportunities. The local development process becomes differently spatialized by engaging global financial markets. Capital generated in the periphery often comes in temporary streams, or windfalls, and benefits decline when the resource is depleted. Such non-renewable
resources can be transformed into renewable fiscal ones when capital generated from resource extraction is invested in financial markets through a trust fund. To make non-renewable resources renewable, they can be converted from a physical form into a financial form, thus extending the benefits of capital into perpetuity. This thesis suggests that trust funds may serve as an alternative development mechanism in certain peripheral spaces of the global economy. Trust funds receive a share of resource revenues and increase them through investment. States can establish trust funds as an instrument of government policy, with all citizens as beneficiaries. Trust funds allow for re-spatializing the nature of
investment as well as for sustaining it over time. My analysis is based on the examination of six case studies. Two of these
are peripheral economies in North America: the state of Alaska in the United States, and the province of Alberta in Canada. Both Alaska and Alberta established trust funds to manage their petroleum revenues. The four remaining cases are independent Pacific island nations: Kiribati, Nauru, Tonga, and Tuvalu. Each of these island nations established a trust fund to manage windfall resource revenues. The performance of these six trust funds has varied, largely reflecting policy choices. I develop a set of six criteria for the management of a successful fund. In this thesis, I ask development practitioners to reimagine the economic spaces of marginal economies and the relationship between core and periphery. I argue for a separation of the sites of capital generation and capital investment, and for transforming non-renewable windfall resources into renewable fiscal ones.
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Yoshioka, Takayuki. "Representational roles of nonprofit organizations in policy advocacy." Thesis, 2014. http://hdl.handle.net/1805/3898.
Full textAbstract:
Indiana University-Purdue University Indianapolis (IUPUI)This research explores what roles nonprofits play in political representation by applying the concept of the representational role to nonprofits. The representational role consists of representational focus and style. Representational focus shows those whom nonprofits aim to serve: members, constituents, or the general public. Representational style denotes the ways nonprofits advocate for their focal groups: the delegation, trusteeship, and educational styles. The survey and regression analysis results demonstrate that nonprofits serving their members are most likely to convey their members’ voices directly to policy makers: the delegation style. In contrast, nonprofits advocating for their constituents are likely to pursue what they independently identify as the interests of their constituents: the trusteeship style. Finally, nonprofits speaking for the general public are most likely to work toward educating the general public: the educational style. These results suggest that nonprofits play different roles in political representation, depending on the types of their focal groups.