A trustee can resign from his/her office. One of the questions that arises is: when is the resignation of a trustee seen as effective? Is it when the trustee signs a notice of resignation or when Master removes his/her name from the letter of authority, and issues an amended one?

The logic flows that because a trustee has no authority until the Master issues the letter of authority, so then, his/her office of trusteeship terminates with the issuing of an amended letter of authority. However, due to COVID and the recent IT hack of the Department of Justice, there are significant delays at the Master’s office regarding the issuing of letters of authority. This naturally could cause a great amount of unfairness.  In Soekoe NO & Others v Le Roux (unreported OFSPD case, no898/2007) this question was raised, and the court stated: “He (the trustee) remained legally accountable to his fellow trustees for the entire period until the Master of the High Court officially removed him from the office as a trustee.

The respondent’s duties did not fall away when he resigned, but when he was replaced with the third applicant.” The effect hereof seems unreasonable given the current state of affairs of the Master’s office. A subsequent case of Meijer NO & Another v FNB 2013 the Western Cape High Court said the following: “the resignation should take effect not only upon it being show that the written notice was sent to the Master and the ascertained beneficiaries, but upon an acknowledgement by the Master of the receipt thereof.” This approach is the more flexible interpretation of Section 21 of the Trust Property Control Act.

Professor Willie Van der Westhuizen states in his book Wills & Trusts “the Master’s acknowledgement of a receipt of the notice of resignation should perhaps in all instances be the trigger or moment to cause the resignation to take effect, and not the removal of the name of a trustee from the letter of authority.

This could be conducive of more fairness as well as legal certainty because in respect of the acknowledgement by the Master of receipt of a notice of resignation, the resigning trustee is more directly involved in the process by, for instance, delivering a notice to the Master’s office and getting a date stamp on a copy of the letter of resignation than when due to possible delays in the Master’s office which may occur between the delivery to his office and the removal of the trustees’ name from the letter of authority, a resigning trustee could be unfairly prejudiced.”

I agree with the views of Prof van der Westhuizen in that the more flexible approach adopted in Meijer, is more in line with the notions of fairness and reasonableness.