Erskine 1948 Trust, Re [2012] EWHC 732 (Ch) (29 March 2012)

Erskine 1948 Trust, Re [2012] EWHC 732 (Ch) (29 March 2012)

The trust settlement, though defined by the 1925 Act which excluded adopted children, must now be construed to eliminate discrimination against adopted children due to the retrospective effect of the Human Rights Act 1998 and the Convention, given the absence of explicit exclusion and the unique features of the trust; thus, the adopted nephews qualify as statutory next of kin and are entitled to the trust fund.

Citation
[2012] EWHC 732 (Ch)
Parties
Claimant: William Stewart Gregg; Claimant: Nigel Humphrey Smith; Defendant: Christopher Richard Erskine Pigott; Defendant: Stephen Robert Erskine Pigott; Defendant: Fiona Margaret Lady Mottram
Jurisdiction
England and Wales
Judgment Date
29 March 2012
Procedural Posture
Part 8 Claim / Judgment
Outcome
Declaration that the trust fund vests in Christopher Richard Erskine Pigott and Stephen Robert Erskine Pigott as statutory next of kin; representation order granted.
Legal Topics
Construction of Trust Instruments, Adopted Children's Inheritance Rights, Retrospective Application of Human Rights Act, Discrimination Under Article 14, Interpretation of 'statutory Next of Kin'
Trusts Inheritance Human Rights Construction of Trust Instruments Adopted Children's Inheritance Rights Retrospective Application of Human Rights Act Discrimination Under Article 14 Interpretation of 'statutory Next of Kin'

Case Brief

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Parties

William Stewart Gregg

Claimant

Nigel Humphrey Smith

Claimant

Christopher Richard Erskine Pigott

Defendant

Stephen Robert Erskine Pigott

Defendant

Fiona Margaret Lady Mottram

Defendant

Procedural Posture

Part 8 Claim / Judgment

Legal Issues

  1. 1 Whether adopted nephews qualify as 'statutory next of kin' under a 1948 trust settlement
  2. 2 Effect of Human Rights Convention on construction of private trust instruments
  3. 3 Retrospective application of Human Rights Act 1998 to pre-existing trusts

Ratio Decidendi

The trust settlement, though defined by the 1925 Act which excluded adopted children, must now be construed to eliminate discrimination against adopted children due to the retrospective effect of the Human Rights Act 1998 and the Convention, given the absence of explicit exclusion and the unique features of the trust; thus, the adopted nephews qualify as statutory next of kin and are entitled to the trust fund.

Court Disposition

Declaration that the trust fund vests in Christopher Richard Erskine Pigott and Stephen Robert Erskine Pigott as statutory next of kin; representation order granted.

Orders

  • Trust fund to be distributed to Christopher Richard Erskine Pigott and Stephen Robert Erskine Pigott.
  • Costs of all parties to be borne by the trust fund, including Lady Mottram's costs on the indemnity basis if not agreed.