MF boss removed from husband’s trust
MF LEADER Shameen Thakur Rajbansi has been axed as trustee of her late husband’s family trust after a court found she cannot remain impartial as she is also in charge of his multimillion rand estate.
Her two fellow trustees – advocate Himal Tugh and Pravin Ramjathan – had approached the Durban High Court, arguing that Thakur Rajbansi was in an irreconcilable position of conflict between her personal interests as a beneficiary in the estate of which she is the executrix, and her fiduciary duties as trustee.
The trust has assets also worth millions of rand.
Her conduct, they alleged, had jeopardised trust assets and she had failed to act in good faith and in its best interest in relation to the transfer of certain shares in several companies.
Thakur Rajbansi had initially tried to have the pair removed as trustees following their objections to the estate’s final liquidation and distribution account.
While they wanted the shares and cash holdings in several companies, including Phoenix North Properties, Gahana Enterprise, Footwin Investments and Snapshot Investments 1359 transferred to the trust in terms of Rajbansi’s will, Thakur Rajbansi wanted them transferred to the estate.
In 2013, a year after her husband’s death, she obtained an interdict against her fellow trustees, as well her stepdaughter Vimlesh, who had held these shares as nominee for and on behalf of the trust.
Judge Piet Koen said in his May 15 judgment that via her dual role as trustee and executrix, Thakur Rajbansi had placed herself in a position where she has to choose sides.
“(She) has found herself in the invidious position of laying claims to the shares as executrix whilst in the proper discharge of her fiduciary duties as trustee she might also be required to pursue those shares on behalf of and for the benefit of the trust directly,” the judge said.
“Whether she is correct in having chosen the side of the deceased estate is not the issue. By placing herself in a position where she has to choose sides results in a situation where she cannot remain impartial and non-partisan.”
Judge Koen said no proof of mala fides or dishonesty was required.
“Her positions as executrix and as trustee in relation to the transfer of the shares simply involve two positions which are mutually destructive, with conflicting duties.”
Tugh and Ramjathan had brought the court action against Thakur Rajbansi, her stepchildren Vimlesh, Vimal, Vimlekha, Vimshana Deviu and Vimtha Rajbansi, as well as the Master of the High Court.
In terms of the order, she has to hand over all documents, banking and administrative instruments relating to the trust and pay the costs of the application.
The judge said that it was well established in our law that a trustee must administer a trust estate with the utmost good faith and in the best interest of the trust beneficiaries.
The court was, however, not swayed that it should impose a punitive order of costs on Thakur Rajbansi.
“(She) was entitled to place her views before this court. It was reasonable for her to do so,” the judge said. “That she has been unsuccessful does not per se justify a punitive order. There are no further circumstances which would justify such an award.” Thakur Rajbansi told
that while she respects the ruling, she hopes it does not lead to the trust’s “mismanagement”.
“The trust was started by my late husband for our children, and my biggest fear is that there will be no control over the trust now that I am no longer a trustee,” she said. “The money is already being depleted unnecessarily for legal costs.”
She said she had always had the trust’s best interests at heart.
“I have looked after the trust very well, everything was done above board. As long as I was the chair, it ran smoothly. I just hope those who are still trustees will continue to exact the same duties as I have done.”
She revealed that she had always intended on resigning once her husband died, but “unforeseen” circumstances prevented her from doing so.
“Before my husband had died, I had asked my husband should anything happen to him, I would rather resign as trustee and let others handle the matter,” she said. “But the circumstances around his death did not allow me to resign. The trustees who put forward this case wanted to become executors of the trust. The situation became complex, but I stayed, as I knew how the trust should be handled.”
Tugh declined to speak on the matter.