Adopted children should benefit from grandfather's trust fund, ConCourt rules

The Constitutional Court has ruled that a trust created by a donor for the benefit of his children and their descendants unfairly discriminated against children adopted by one of his daughters as it did not include them.

Louis John Druiff executed a deed of trust as well as a will “for the benefit of his children and their descendants”.

The deed of trust said any income should be for his four children and their children.

At the time of execution of the deed‚ Druiff had four children‚ three of whom already had children of their own.

One of his daughters‚ Dulcie Helena Harper‚ was married but did not have any children. She later adopted two children.

On the deaths of Harper’s siblings‚ their quarter-shares of the capital duly devolved upon their children.

When she realised that her children would not benefit from the trust, Harper approached the Cape Town high court seeking a ruling that the words “children”, “descendants”, “issue”, and “legal descendants” in the trust deed included them, notwithstanding that they were adopted.

The high court said Druiff failed to explicitly include the adopted children as required by the Children’s Act and therefore they could not inherit.

Harper then approached the Supreme Court of Appeal (SCA) but she died before the matter could be heard. The executor of her estate pursued her appeal, but lost.

Harper’s adopted children then approached the apex court seeking leave to appeal against the SCA ruling.

According to the Constitutional Court, the trust deed was executed at a time when legislation excluded adopted children from inheritance in terms of a testamentary instrument unless it conveyed a clear intention to include them.

The applicants called on the court to consider the question of unfair discrimination against adopted children and the role of public policy when giving effect to private trusts.

They argued that the court ought to develop the common law to give effect to the right to equality, and said the Children’s Act should be applied retrospectively.

The respondents in the matter submitted that Druiff did not intend to include adopted children.

They held that since the trust deed was executed before the adoption, the adopted children were not entitled to inherit unless this was clearly conveyed.

The majority judgment upheld the appeal, saying the exclusion of adopted children in the trust deed constituted unfair discrimination and was therefore contrary to public policy. Accordingly, this court cannot enforce that exclusion,” the court found.

The court declared the adopted children capital beneficiaries of a quarter share of the trust capital.

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