Harper and Others v Crawford NO and Others (9581/2015) [2017] ZAWCHC 78; 2018 (1) SA 589 (WCC) (30 June 2017)

Harper and Others v Crawford NO and Others (9581/2015) [2017] ZAWCHC 78; 2018 (1) SA 589 (WCC) (30 June 2017)

The court held that the Trust Deed must be interpreted according to the intention of the donor at the time of execution, and the language used—'children', 'descendants', 'issue', and 'legal descendants'—refers to biological descendants only. The donor was aware of adoption as an option but did not expressly include adopted children, indicating an intention to exclude them. The court found that the constitutional right to equality does not override the freedom of testation in private trusts, especially where the exclusion is not arbitrary but based on the donor's intention. Section 13 of the Trust Property Control Act does not apply, as the donor contemplated the possibility of...

Citation
[2017] ZAWCHC 78
Parties
Applicant: Dulcie Helena Harper; Applicant: David Louis Ayscough Wilkinson; Applicant: Amanda Bridget Truter; Respondent: Georgina Elizabeth Crawford N.O.; Respondent: Peter Davis N.O.; Respondent: Anne-Marie Vivienne Stevens; Respondent: Georgina Elizabeth Crawford; Respondent: Geraldine Marland; Respondent: Anthony Lewin; Respondent: Master of the High Court; Respondent: Ruth Jessica Druiff; Respondent: Jed Michael Druiff
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
30 June 2017
Case Number
9581/2015
Procedural Posture
Civil Application / First Instance Judgment
Outcome
Application dismissed with costs.
Judges
Dlodlo
Legal Topics
Trust Deed Interpretation, Adopted Children Rights, Freedom of Testation, Section 13 Trust Property Control Act, Constitutional Equality, Public Policy
Land and Property Civil Procedure Trust Deed Interpretation Adopted Children Rights Freedom of Testation Section 13 Trust Property Control Act Constitutional Equality Public Policy

Case Brief

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Parties

Dulcie Helena Harper

Applicant

David Louis Ayscough Wilkinson

Applicant

Amanda Bridget Truter

Applicant

Georgina Elizabeth Crawford N.O.

Respondent

Peter Davis N.O.

Respondent

Anne-Marie Vivienne Stevens

Respondent

Georgina Elizabeth Crawford

Respondent

Geraldine Marland

Respondent

Anthony Lewin

Respondent

Master of the High Court

Respondent

Ruth Jessica Druiff

Respondent

Jed Michael Druiff

Respondent

Procedural Posture

Civil Application / First Instance Judgment

Legal Issues

  1. 1 Whether the words 'children', 'descendants', 'issue' and 'legal descendants' in the Trust Deed include adopted children of the first applicant.
  2. 2 Whether the Trust Deed should be amended under Section 13 of the Trust Property Control Act to include the adopted children as beneficiaries.
  3. 3 Whether exclusion of adopted children constitutes unfair discrimination under Section 9 of the Constitution.

Ratio Decidendi

The court held that the Trust Deed must be interpreted according to the intention of the donor at the time of execution, and the language used—'children', 'descendants', 'issue', and 'legal descendants'—refers to biological descendants only. The donor was aware of adoption as an option but did not expressly include adopted children, indicating an intention to exclude them. The court found that the constitutional right to equality does not override the freedom of testation in private trusts, especially where the exclusion is not arbitrary but based on the donor's intention. Section 13 of the Trust Property Control Act does not apply, as the donor contemplated the possibility of...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.
  • The costs shall be paid by the LJ Druiff Trust Registration Number T1280, as agreed between the parties.