Paraphrase:

Question

Where a testamentary trust has been set up it may be that a question touching the construction of the will is raised; in such cases the domiciliary law of the testator—the standard law for construction of a will—will be used. Thus in Ex parte Courtenay Selous School Parent Teachers Association it was held ‘that the proper law to be applied is that prevailing … where a testator was domiciled.’ And the same point was made in Wynn NO and Westminster Bank Ltd NO v Oppenheimer and Others. It was held that while a question of administration would in the circumstances be governed by English law, since a question of the construction of the will arose, the law to be applied was that of the testator’s domicile. Similarly in trusts inter vivos, a point concerning the construction of the trust deed will be governed by the proper law of that deed, which may differ from that governing the administration of the trust. Where the administration of a trust of movables is concerned, the locus of administration is predominant. In Kalshoven v Kalshoven and Another NO for example, it was said that ‘[t]he duty of a trustee is to administer the trust in accordance with its terms and the general law of trusts of the country where the trust is being administered.’ Difficulties may arise, however, where the situs of the trust property and its locus of administration differ. Generally, however, the locus of administration ought to prevail; after all, a single trust may administer movables in a number of different countries, and it would be inconvenient indeed if all the trust property could not be administered according to the same law. Where provision is made in the trust deed for changing the locus of administration, this will generally mean that the law governing the administration of the trust will change also; at any rate, in Fattorini v Johannesburg Board of Executors & Trust Co Ltd it was held that the founder of a trust which provided for a change of locus ‘intended that his new trustees governing the assets in the new country should do so in accordance with the law of that country’.

Answer 1

In cases where a testamentary trust is established, questions about the interpretation of the will may arise. In such situations, the law of the testator's domicile, which is the standard law for interpreting a will, will be used. This principle was established in cases like Ex parte Courtenay Selous School Parent Teachers Association and Wynn NO and Westminster Bank Ltd NO v Oppenheimer and Others. Similarly, when it comes to trusts created while the settlor is alive, the interpretation of the trust deed will be governed by the law of that deed, which may be different from the law governing the administration of the trust. In cases where the administration of a trust involving movable assets is involved, the location of administration is crucial. Despite potential challenges when the location of the trust property differs from the location of administration, it is generally accepted that the location of administration should prevail. If the trust deed allows for a change in the location of administration, this will also mean a change in the governing law of the trust administration. This was exemplified in the case of Fattorini v Johannesburg Board of Executors & Trust Co Ltd where it was ruled that the founder intended for the new trustees in a different location to administer the assets according to the law of that country.