In Eskine Trust, Gregg and another v Piggot and others this phrase was considered with regards to a settlement made in 1948 which comprised of approximately £3.2 million.
In 1948 the deceased set up this trust for one of his daughters. The daughter who was to benefit (A) had a sister (B), who had no biological children but had two adopted sons. B died during the lifetime of A and the trust provided that in this situation, if the A had no children who attained an interest in the trust fund, that the fund was to be held for B at the age of 30 or upon marriage. If B also died in the lifetime of A, or before meeting one of these conditions, then the fund was to be held for the 'statutory next of kin' of B.
B had died during A's lifetime and so the trust was therefore due to B's 'statutory next of kin'. In this case, there were no parents, siblings or children alive, just B's two adopted sons.
At the time the trust fund was created, adopted children had no rights on inheritance, as such the niece to the deceased argued that the trust should pass to her and not the adopted children. The adopted children's solicitors argued the case using the European Convention on Human Rights, in particular the right to family life and the prohibition on discrimination, stating that the Court should not discriminate against adopted children.
The Court held that the Convention was able to be applied retrospectively, where to not do so would result in unfairness and discrimination. However, they distinguished the case on the basis that there no explicit exclusion of adopted children in the original trust and to thereby not allow them to inherit would be contrary to the European Convention on Human Rights.
This case has highlighted the importance of solicitors considering how family situations may change in the future, to prevent similar litigation occurring. At Gepp & Sons, we consider all possible family situations at the time of drafting to attempt to cover all of the possible family set ups in the twenty-first century.
Please contact us on 01245 493939 for further information or email privateclient@gepp.co.uk
The above is not legal advice; it is intended to provide information of general interest about current legal issues.
