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Court case: Trust clause ruled to be discriminatory

Wilkinson and Another v Crawford N.O. and Others [2021] ZACC 8

The facts of this matter were summarised in our previous reports about the judgements of the Cape High Court (WCHC) and the Supreme Court of Appeals (SCA). In short in 1953 a testator bequeathed part of his estate to a trust. The capital beneficiaries of the trust were to be his grandchildren. It was common cause in the Constitutional Court (CC) that he intended not to include adopted grandchildren. After his death his daughter adopted two children. Upon her death as the longest survivor of his children the trust was to be terminated. Before her death the daughter started the proceedings in the Cape High Court to attack the terms of the trust on the basis that they were discriminating unfairly on a ground prohibited by section 9 of the Constitution.

In an appeal to the CC against refusal by the WCHC and the SCA to order that the adopted children be regarded as descendants of the testator, the appellants argued that the terms of the trust were open to an interpretation that adopted children were to be included as capital beneficiaries, alternatively that exclusion of the adopted children amounts to unfair discrimination on a section 9 prohibited ground (birth).

The majority of the CC (Mhlantla J, with Khampepe J, Madlanga J, Theron J and Victor AJ concurring) ruled that although adoption is not specifically listed in section 9 it is analogous to birth, which is a prohibited ground of unfair discrimination in section 9.

In a first dissenting judgement Majiedt J disagreed and held that adoption cannot be equated to birth. The infringement on the testator’s right to bequeath as he pleases as an expression of his right to privacy, dignity and property is also unjustified.

In a second dissenting judgement Jafta J (Mogoeng CJ concurring) held that the relevant clause (6) of the trust deed, if construed correctly, already covered the adopted children and qualified them as capital beneficiaries.

The result of the majority judgement is that the adopted children will each receive one quarter of the trust capital.

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