- A divorced attorney argued that she remained a trust beneficiary because she was married to the principal beneficiary when the trust deed was signed.
- Judge HM Slingers found that the trust deed did not extend the definition of “spouse” to former spouses.
- The High Court in the Western Cape dismissed the application with costs on scale B.
A divorced attorney who claimed she should keep receiving income and capital from an investment trust set up during her marriage could not convince the High Court in the Western Cape that she remained a beneficiary after her marriage ended.
In a judgment delivered on 19 October 2026, Judge HM Slingers dismissed the application, finding that the trust deed did not preserve her beneficiary status just because she was married to the principal beneficiary when the trust was created.
The dispute focused on how to interpret the trust deed, which listed the spouses of named beneficiaries, along with their children and descendants, as people who could benefit from the trust. The applicant is an attorney and conveyancer who started the trust during her marriage to the first respondent.
Their relationship later broke down, and they divorced in February 2023. She asked the court to declare that she remained a beneficiary of an investment trust, arguing that her rights began when it was set up and should not have ended with the divorce.
Trust established for Hermanus property investment
The applicant said she and her former husband had gone into various business ventures during their marriage to grow their joint assets. In 2006, she spotted an opportunity to buy property in Hermanus, but they did not have the capital to acquire it.
They turned to friends to raise the money, and the trust was created through a deed signed on 24 November 2006. The property was later registered in the trust’s name on 30 May 2007. The trust deed named the first respondent as the principal beneficiary and said that beneficiaries included the spouses of the named beneficiaries, their children and their descendants.
Although the applicant was not specifically named as a beneficiary, she argued that the wording meant she could benefit through her marriage to the first respondent. She said she had previously used the property and helped manage it. She claimed she was entitled to a share of the rental income, the capital, and the right to use the property as a holiday home.
The applicant said she was entitled to 16.67% of the trust’s benefits, which she said was half of the 33.33% allocated to the principal beneficiary. The trustees disagreed, saying the trust deed did not protect the status of former spouses.
They explained that the trust was meant to last a long time and that including spouses as a category was to allow for changes in beneficiaries’ family situations over time. The trustees said they did not want to name spouses individually because they did not want “any distant ex-wives to disturb the trustees or the trust as such”.
They also said the trust had not made profits from short-term rentals after costs. An application to declare the trust insolvent was pending.
Judge finds divorce ended entitlement as a spouse
Judge Slingers said the key question was whether the word “spouse” in the trust deed included someone who was married to a beneficiary when the trust was created, but was later divorced. The judge said the deed had to be read objectively, taking into account its wording, context, purpose, and the circumstances when it was signed.
The applicant herself admitted that including spouses, children, and grandchildren was meant to allow for changes in family situations without having to change the trust deed every time. The judge found that this forward-looking purpose supported the trustees’ view rather than the applicant’s argument that her status became permanent when the deed was signed.
A plain reading of the clause did not support the view that “spouse” should mean “former spouse” or “spouse at the time the trust deed was executed,” Judge Slingers said. The judgment also questioned the applicant’s explanation that naming spouses individually would have complicated the trust’s administration. The judge said the deed could have named the spouses or limited the definition to current spouses.
The applicant’s own affidavit weakened her case further. She had said that her right to claim benefits from the property came from her marriage to the first respondent. Judge Slingers found that this was important because her claim depended on her still being a spouse under the trust deed.
When her marriage to the first respondent ended, she was no longer a spouse and did not fall under the relevant clause, the judge said. The court found that she failed to show she remained a beneficiary after the divorce.
Former husband’s offer did not establish trust entitlement
The applicant also pointed to an offer her former husband made during settlement talks about dividing their marital assets.
He offered his 16.67% share in the trust for calculating the accrual in their estates. She argued that this meant he admitted she deserved the relief she was asking for, and that the trustees had opposed her application without good reason.
Judge Slingers disagreed, saying there was a difference between an offer made by her former husband personally and a concession made on behalf of the trust. The judge noted that the offer was about the former husband’s personal estate and how to calculate the accrual. The applicant, however, wanted recognition of beneficiary rights for as long as the trust existed.
The judge said the offer by the first applicant in his personal capacity could not be accepted as a concession on behalf of the trust. The judgment also noted that the trust deed did not explain how the principal beneficiary’s 33.33% should be split between him, his spouse, children, and descendants. The applicant had not shown clearly why she should get 16.67%.
Judge Slingers concluded that the applicant had not made out a case for the declaratory relief she wanted. The application was dismissed with costs on Scale B.
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