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Warren john Fletcher vs. Gillian Claire Mcnair - (23 Oct 2020)

Mere conflict amongst trustees themselves is not a sufficient reason for the removal of a trustee at the suit of another

Trusts and Societies

Present appeal concerns the removal of the Appellant, Mr Warren Fletcher, as a trustee of the McNair Family Trust (the Trust) at the instance of the Respondent, Mrs Gillian McNair. The Full Court reversed the decision and removed the Appellant as a trustee and replaced him with the respondent’s sister. With the special leave of this court, the Appellant appeals against the order of the Full Court.

The Court has inherent power to remove a trustee from office at common law. This power is also sourced in Section 20(1) of the Trust Property Control Act 57 of 1988 which provides that, a trustee may on application of the Master or any person having an interest in the Trust property, at any time be removed from his office by the Court, if the Court is satisfied that his removal will be in the interests of the Trust and its beneficiaries.

Mere friction or enmity between the trustee and the beneficiaries will not in itself be an adequate reason for the removal of the trustee from office. Mere conflict amongst trustees themselves is not a sufficient reason for the removal of a trustee at the suit of another. Neither mala fides nor even misconduct are required for the removal of a trustee. Incorrect decisions and non-observance of the strict requirements of the law do not of themselves, warrant the removal of a trustee. The decisive consideration is the welfare of the beneficiaries and the proper administration of the Trust and the Trust property.

Section 173 of the Constitution of the Republic of SA, Act 1083 of 1996 provides that, the Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own processes, and to develop the common law, taking into account the interests of justice.

The Full Court was correct in its observation that the counter-accusations between the Respondent and the Appellant had created enmity between them and had eroded mutual trust and respect. But it is instructive that nowhere in its reasoning, did the Court attribute that solely to the Appellant. On the contrary, it appears that the Court considered both the respondent and the appellant to be equally responsible.

The state of the relationship of the Appellant and the Respondent has not imperilled the Trust property or its proper administration. There is no other basis on which it would be in the interests of the Trust and its beneficiaries to remove the appellant. The appeal is upheld with costs.


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