Analysis
By a settlement dated 10 December 1959 (the settlement), John Christopher Druce (the settlor) settled property on discretionary trusts for the benefit of a class of beneficiaries defined as meaning ‘all the male descendants of the Settlor’s brothers and sisters… who are already in being or shall be born before the Vesting Day’. The settlement further provided that the trustees should hold the trust property, or such part thereof as shall not have been paid, transferred or applied under any trust or power therein contained upon trust, for such of the beneficiaries as were living on the vesting day in such shares as they should determine and, in default of such determination, in equal shares. The vesting day was due to fall on 10 December 2019 and the value of the trust property was approximately £1,290,000. The claimants, who were the current trustees of the settlement, brought an unopposed claim seeking the blessing of the court to take steps in reliance on three written opinions of Henry Legge QC pursuant to s48 of the Administration of Justice Act 1985.
Held (making the order):
Five distinct categories of persons were identified in a schedule of beneficiaries. Category 1 comprised 30 persons who were clearly included within the class of beneficiaries as being male descendants of the settlor’s brothers and sisters. Category 2 comprised four persons born to parents who were never married, Category 3 comprised one person who was born to a mother adopted overseas, Category 4 comprised one person born to unmarried parents who subsequently married and Category 5 comprised one person due to be born after the vesting day.
At common law, ‘descendants’ was confined to legitimate blood relations and, on that basis, certain of the potential members of the class of beneficiaries would be excluded either because they or their parents were illegitimate or adopted. However, following the reasoning of Rose J in Re Hand’s Will Trust [2017], the rights of the illegitimate children fell to be treated in the same way as the adopted children in that case due to the engagement of the European Convention on Human Rights. Section 3 of the Human Rights Act 1988 required domestic legislation concerning adopted, illegitimate and legitimated children to be interpretated in a compatible way by ‘reading down’, ie reading in wording which gave the legislation the opposite intent and effect to those it would have apart from the wording read into the legislation. Although this could not bring about a retroactive alteration in the identity of the beneficiaries at a past point in time, the fact that someone was not a beneficiary when a power fell to be exercised or a duty to be performed at such and such a past date did not mean that this person could not be a beneficiary when a power or duty fell to be exercised or performed now. Thus, ‘reading down’ would not result in inappropriate retrospectivity.
As regards the child born to a mother adopted overseas, if it were impermissible for legislation to discriminate on the grounds that a child was adopted, it must be impermissible to discriminate against a child on the grounds that the child’s mother was adopted. As regards the child born to unmarried parents who subsequently married, at common law he would have been included as a beneficiary by legitimation according to the law of his father’s domicile. The common law would also include the unborn child as he was clearly en ventre sa mere. Accordingly, all the persons identified in Categories 2 to 5 were included as beneficiaries as well as those persons included in Category 1. A Benjamin order was made giving the claimants permission to distribute the trust fund on the footing that the members of the class of beneficiaries were those persons identified in the schedule.
JUDGMENT HHJ KEYSER QC: [1] This claim is brought by the claimants as trustees of the JC Druce Settlement (the Settlement). On 28 October 2019, Deputy Master Linwood gave permission for the issue of the Part 8 claim form without naming defendants, and there are no parties other than the claimants. On 31 October 2019, …Continue reading "Re J C Druce Settlement [2021] WTLR 597"