Abstract

The variation of inter vivos trusts has for a long time been regarded as settled law. Once the beneficiaries have accepted the benefits as conferred, the trustees would only be able to amend the trust deed with the consent of the beneficiaries. The recent case of Potgieter and Another v Potgieter NO and Others 2012 (1) SA637 (SCA) has caused some discussion on whether this rule should also be applied to the situation where a trustee is given express variation powers by the trust deed. The author starts out with a consideration of the legal character of an inter vivos trust, after which follows a brief discussion on the traditional requirements for variation of such a trust. The author then considers the continued validity of these rules given the Potgieter case and recent academic views thereon. In this regard particular emphasis is placed on the impact of express variation powers as provided for in the trust deed and the nature of the benefits being accepted. Lastly the role of the trustee’s fiduciary duties and the possible impact thereof on the validity of a variation are considered. The author concludes that Potgieter leaves the existing legal position regarding the variation of inter vivos trusts unchanged, but that regard should be had to the nature of the benefit being accepted, as the mere acceptance of a spes would not entitle the beneficiary to protection against variation.