@article{Nel_2018, title={The Testamentary Trust: Is it a Trust or a Will? Hanekom v Voigt 2016 1 SA 416 (WCC)}, volume={21}, url={https://perjournal.co.za/article/view/2917}, DOI={10.17159/1727-3781/2018/v21i0a2917}, abstractNote={<p>The recent judgment in <em>Hanekom v Voigt </em>2016 1 SA 416 (WCC) is evaluated in the light of the traditional understanding of the testamentary trust. It is evaluated from both a testamentary disposition and a trust law perspective, with the aim of determining whether the <em>Hanekom</em> matter has touched a particular nerve in the will versus trust debate as far as the trust <em>mortis </em><em>causa </em>is concerned. From this judgment, the importance of differentiating between the spheres of testamentary law and trust law, to ensure legal certainty, became clear. The court submitted that the mere fact that a trust happens to be of testamentary origin should not influence the evaluation of the validity of the amendment of the trust instrument. The court underlined the dynamic nature of the trust figure in referring to it as a "supple, living institution." The nature of the powers vested in the Master of the High Court, both as far as the appraisal of the trust instrument and the appointment of trustees are concerned, is also considered in the judgement. In evaluating the facts of the case, the court recognised the applicability of the <em>Oudekraal</em> principle as it has been developed in the field of administrative law. The writer comes to the conclusion that, while the <em>Hanekom</em> case does illustrate some legal challenges in the last will and testament environment, it also offers a number of valuable lessons for will-drafters. The approach by the court is encouraging, as it shows some sensitivity for the true nature of the testamentary trust. The confirmation by the court that a testamentary trust is in the first instance a trust and not a will <em>per se</em> is to be welcomed, and is a true and realistic reflection of the nature of the institution.</p> <p> </p> <p><a href="https://scholar.google.com/citations?hl=en&view_op=list_works&gmla=AJsNF7ap8RHRG9BoqpMjpI21zQn2mk39GhT95OqCIXjzhls64fuba66CQaAJj_btl60SyhUKz20QinI4ThWP440_VdGF5tgg&user=C4ZqO54AAAAJ#" target="_blank" rel="noopener"><img src="/public/site/images/bontle-1813/Google_Scholar19.png"></a>  <a href="https://www.scienceopen.com/document?vid=544c169d-d91b-4f24-907d-a6f4f03bd7a6" target="_blank" rel="noopener"><img src="/public/site/images/bontle-1813/ScienceOpen_Log03431018.png"></a></p>}, journal={Potchefstroom Electronic Law Journal}, author={Nel, Eben}, year={2018}, month={Apr.}, pages={1–22} }