The parties were married out of community of property subject to the accrual system in terms of the Matrimonial Property Act 88 of 1984. Upon divorce, the respondent (wife) sought an order that the assets of three trusts (Koens Besigheids Trust, Koens Familie Trust, Bulhoek Trust) and a close corporation (Olivia Wildplaas CC) be taken into account in calculating the accrual of the appellant’s estate. She alleged that the appellant (husband) had de facto control over these entities, treated their assets as his own, and that they were his alter ego, established to prejudice her accrual claim. The trusts and CC were joined to the proceedings. The appellant denied abuse of the trust form and contended that the trusts and CC were lawfully established for estate planning, tax efficiency, and asset protection long before marital breakdown. The High Court found that the appellant had used the trusts as his alter ego and pierced the trust veneer, ordering that the trust assets be included in the accrual calculation. The appellant appealed to the Supreme Court of Appeal.
The appeal was upheld with costs, including the costs of two counsel. Paragraphs 2 and 6 of the High Court order were set aside and replaced with an order dismissing the respondent’s claim that the assets of the trusts and Olivia Wildplaas CC be used to calculate the accrual of the appellant’s estate, with costs.
The case reaffirms the limits of piercing the trust veneer in matrimonial disputes and clarifies that de facto control alone is insufficient to include trust assets in an accrual calculation. It underscores the importance of proper pleadings and confirms that courts may not decide cases on unpleaded allegations of fraud or dishonesty. The judgment strengthens legal certainty around the use of trusts for legitimate estate planning in South African family law.