n South African Law Journal - Parker, life partnerships and the independent trustee
|Article Title||Parker, life partnerships and the independent trustee|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Affiliations||1 University of the Free State|
|Publication Date||Jan 2013|
|Pages||527 - 553|
This article considers the ambit of the suggestion made by Cameron JA in paragraph 35 of the landmark judgment in Land and Agricultural Bank of South Africa v Parker (subsequently elevated to a legal requirement by Circular 2 of 2005 issued by the Acting Chief Master then in office) to the effect that an 'independent trustee' should be appointed to certain trusts in order to ensure 'that an adequate separation of control from enjoyment is maintained ...''. In particular, the interpretation of what may be termed the 'independent trustee requirement' is considered. I conclude that a literal interpretation of paragraph 35 of Parker does not square with the rationale and 'legal logic' behind the imposition of this requirement. A broader interpretation is therefore required in order to achieve this. Building on this conclusion, I investigate the issue whether the requirement should be imposed on non-formalised life partnerships. In this regard I consider the current legal position as well as the position that will obtain if the draft Domestic Partnerships Bill, 2008 were to be enacted. The article concludes with suggestions as to how my findings may be implemented by the Master.
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