By Charles Tachiona
Wilmot and Bennett
What is a trust?
A trust is created when its founder “hands over or is bound to hand over the control of an asset which, or the proceeds of which, is to be administered by another (the trustee or administrator) in his capacity as such for the benefit of some person (the beneficiary) other than the trustee or for some impersonal object”
Essential elements of a trust
The essentials of a trust are that the founder intends to create the trust and his intention is expressed in a form which creates a legal obligation to found the trust. The founder must also define the trust assets and the trust objects which must be lawful. An obligation must be placed on the trustee to administer the assets for the benefit of another person or object and he must be independent and have control over the assets of the trust.
Types of trusts
Parties to a trust
The parties to a trust are the founder or donor, the trustee and the beneficiary.
Variation of a trust
A trust may be varied by the agreement of the founder, trustee and beneficiaries. It may also be varied by the founder and the trustee before acceptance by the beneficiaries of the benefit of the trust. In limited circumstances the court may vary a trust. Such circumstances include necessity, frustration of the trust objects and the need to sell property.
Termination of a trust
A trust terminates on fulfilment of the conditions prescribed in the trust deed. For example, a testamentary trust might provide that the trust will terminate on a minor beneficiary attaining the age of 21 years. A trust may also terminate if the beneficiary waives his right to receive the benefit or on the destruction of the trust assets.
Advantages of a Trust
Trusts can help you manage your property and assets, make sure they are distributed after your death according to your wishes, and save your family money, time and paperwork. Assets held in a trust are usually protected from creditors of the beneficiaries, or the trustees personally, Trusts also give protection against relationship property claims, e.g, property