Removing a Trustee: The Grounds the Courts Actually Accept

The trust has been mismanaged — or at least that is what you believe. Assets have been dealt with in ways you don't understand and haven't been explained. Distributions have been uneven. The trustee won't respond to requests for accounts. Or perhaps the issue is simpler: the trustee appointed twenty years ago is elderly and confused, and you are watching trust assets erode with no clear oversight. You want them removed. But you are not certain whether what you are facing actually justifies court action, or whether you have standing to bring it.

Trustees in South Africa operate under the Trust Property Control Act 57 of 1988. They have broad discretion in how they manage trust assets, and courts are protective of that discretion. A beneficiary who is unhappy with how a trustee has exercised their judgment — who would have made different investment decisions, or who disagrees with distributions — does not, on that basis alone, have grounds for removal. What courts will scrutinise is whether the trustee is actually capable of performing their duties, whether they have committed specific identifiable breaches, whether an actual conflict of interest prevents them from acting impartially, or whether they have effectively abandoned the trust altogether.

What grounds courts accept — and what they don't

Incapacity — whether through age, illness, or mental decline — is a recognised ground, but courts require medical evidence before they will act on it. Family testimony that a trustee seems confused is not sufficient on its own. A formal medical assessment from a qualified specialist is what the court will want to see.

Breach of trust covers the spectrum from serious misappropriation through to a failure to keep proper records. Self-dealing — using trust assets for the trustee's own benefit without disclosure — is the clearest form of breach. Misappropriation of funds, failure to invest prudently, distributing assets to one beneficiary that should have been shared — these are the types of conduct courts treat as sufficient. What does not qualify is a trustee who made a decision the beneficiaries disagree with, even a poor one, provided that decision fell within the range the trust deed permits.

Conflict of interest removes a trustee's ability to act impartially — for example, where the trustee has personal business interests that directly compete with the trust. This is distinct from the fact that some trustees are also beneficiaries, which is not unusual and is not by itself a ground for removal.

The Master's power — and why it matters

What many beneficiaries do not know is that the Master of the High Court has its own power to remove a trustee under section 20(1) of the Trust Property Control Act, without requiring a full High Court application. This power can be exercised where a trustee has failed to comply with the Master's requirements or where the Master is satisfied that the trustee is no longer fit to hold office. For cases where the grounds are relatively clear — a trustee who has stopped responding, or who has breached duties in a way the Master can verify from the trust's own records — the Master's Office can be a faster and less expensive route than litigation.

It is not always available, and the Master does not routinely exercise this power on a beneficiary's complaint alone. But it is worth exploring before committing to High Court proceedings that will take twelve to eighteen months.

What to do before you litigate

Under section 16 of the Trust Property Control Act, a beneficiary is entitled to inspect the trust deed and to receive annual accounts from the trustee. This is a right, not a privilege — and exercising it is the correct first step in any trust dispute. Formally demanding the trust deed, the accounts for the past three years, and a written explanation of any transactions you question does two things: it may produce the transparency that resolves the dispute without litigation, and if it doesn't, it establishes a paper trail that supports your case.

Many trust disputes that appeared to require court action resolved when the trustee was formally required to account. Trustees who are acting properly are generally willing to show their workings. Those who are not often become considerably more cooperative when a formal legal demand makes clear that the alternative is a court application.

If you have demanded accounts and been ignored, or if the accounts reveal the specific breaches you suspected, the next step is legal advice on whether those grounds meet the threshold for removal — and whether the Master or the High Court is the appropriate forum. We will give you an honest answer rather than encouraging litigation that is unlikely to succeed.

This article is part of our Estates & Trusts practice. If you are dealing with this situation, speak to one of our directors directly.

Disclaimer: This article is general information, not legal advice. The law is stated as at the date of first publication and may since have changed. Reading it does not create an attorney–client relationship. For advice on your specific circumstances, speak to one of our directors. See our full disclaimer.