Can you change the name of a trust?

A trust is recognised by its unique registration number, and not by its name. One is not required to reserve the name of a trust before it is registered. For companies one has to reserve its name before it is registered. There may therefore be multiple trusts in South Africa with the same name. It is wise not to make the name of the trust too recognisable, such as your surname, so that creditors cannot trace the trust too easily.

It is possible to have a trust’s name changed, if you so wish. Changing the name of an inter-vivos trust (a trust created during your lifetime) will require the lodgement of an amended trust deed with the Master of the High Court, who registered the trust. The trust deed stipulates the name of the trust and any amendment thereof will require an amendment to the existing trust deed. However, in order to have the name of a testamentary trust (a trust created upon your death in your will) changed, one will have to apply to Court. Although it is more cumbersome to amend any provisions of a testamentary trust, Section 13 of the Trust Property Control Act is important because it grants the Court certain powers in terms of the amendment of a trust instrument. The Section provides as follows:

• if a trust instrument contains a provision which brings about consequences, which in the opinion of the Court, the founder did not contemplate or foresee; and 
• which hampers the achievements of the objects of the founder; or prejudices the interests of beneficiaries; or is in conflict with public interest, 
• then the Court may (on application of the trustee or any interested person), delete or vary such provision or make any order which the Court deems fair under the circumstances, including an order to terminate the trust.

This effectively means that a trustee, or any other interested person, can apply to Court to have a testamentary trust amended as envisaged in terms of this Section. This may be a costly exercise just to change its name, and a name change request may not even meet the requirements of Section 13. However, once the Court approves the change, a similar process will be followed, as described below for inter-vivos trusts.

The following procedures should be followed when changing the name of an inter-vivos trust:

• The application must be supported by the founder, the trustees and the beneficiaries (if they have accepted benefits), and the trust deed must not expressly prohibit such a change. If the trust deed prohibits a change, the trust deed will first have to be amended. An inter-vivos trust is a stipulatio alteri (a contract on behalf of a third person (Crookes v Watson case of 1956). In terms of the principles applicable to a stipulatio alteri, the beneficiaries in the case of an inter-vivos trust acquire stipulated rights in the trust property only when they accept the benefits of the stipulatio. It means that they have either physically received distributions from the trust in the past, or they have merely written to the trustees and accepted their benefits as beneficiaries.
• A proper deed of amendment should be lodged with the Master of the High Court, reflecting the old and the new name.
• The original Letters of Authority of the trustees, on which the old name is indicated, must be lodged with the Master of the High Court.
• If the Master of the High Court is satisfied that all the requirements for a valid amendment have been met, an amended Letters of Authority will be issued indicating all previous trust names in sequence, as well as the new trust name. 

Once the Master has issued an amended Letters of Authority, it is the obligation of the trustees to inform third parties of the name change, and have the title deeds of fixed property endorsed accordingly.