Brief Summary

Trusts — Beneficiaries — Inclusion of adopted children — Applicants sought a declaration that adopted children qualify as beneficiaries under a Trust Deed executed by the Donor — First applicant, the only surviving child of the Donor, had adopted the second and third applicants — Respondents opposed the application, arguing that the Trust Deed did not intend to include adopted children — Legal issue centered on whether the terms of the Trust Deed could be interpreted to include adopted children as beneficiaries — Court held that the Trust Deed should be interpreted to include adopted children, aligning with the spirit of the law and public policy, thus allowing the second and third applicants to inherit from the Trust upon the first applicant's death.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took the form of an application in the Western Cape Division of the High Court for declaratory and alternative statutory relief concerning the proper interpretation, and possible amendment, of a private family trust deed. The applicants sought a determination of whether adopted children fall within beneficiary descriptions in the trust instrument, and failing that, an order varying the trust deed under statutory powers.

The first applicant was Dulcie Helena Harper (born Druiff, also referred to in the judgment as Dulcie Helena Wilkinson), a surviving child of the trust founder. The second and third applicants were her lawfully adopted children, namely David Louis Ayscough Wilkinson and Amanda Bridget Truter. The respondents comprised, among others, the trustees of the LJ Druiff Trust (cited nomine officii), various family members who stood to benefit if the adopted children were excluded, and the Master of the High Court (who did not oppose the relief).

The application was opposed by all respondents save the Master. It was heard on 16 May 2017 before Dlodlo J, with judgment delivered on 30 June 2017. The dispute arose in the context of the impending distribution of a one-fourth capital share of the trust upon the first applicant’s death, and the contest between the applicants (seeking inclusion of adopted children) and other descendants (seeking distribution confined to blood descendants as beneficiaries under the trust deed).

The general subject-matter concerned the intersection between the interpretation of a trust deed executed in the 1950s, the then-operative adoption legislation, and constitutional-era arguments based on equality and public policy, as well as the scope of the court’s power to vary a trust instrument under section 13 of the Trust Property Control Act 57 of 1988.

2. Material Facts

In January 1953 the late Louis John Druiff (“the Donor”) executed a notarial deed of trust, and in May 1953 he executed a notarial deed of amendment varying clause 5. The judgment treated the original and amended instruments collectively as the Trust Deed. The trust established a scheme under which the Donor’s four children were income and capital beneficiaries in defined ways, and on the death of each child, that child’s one-fourth capital share would devolve upon that child’s “descendants” per stirpes, with additional provisions regulating minors and the possibility of a child dying without issue.

Clause 4 provided for investment and for income to be applied for the benefit of the Donor’s four children and any child or children of those four children. Clause 4B provided that upon the Donor’s death the net revenue and income would be divided equally among the four children, with a deceased child’s share devolving upon that child’s descendants per stirpes. The amended clause 5 provided that if the whole of the capital had not been applied, the trust would remain in force until the death of the four children, and as each died, that child’s one-fourth capital share would be paid to his or her descendants per stirpes; if a child died without leaving issue, that share would devolve upon the remaining children and form part of the trust capital.

It was common cause that the first applicant was the only surviving child of the Donor. It was also common cause that she had no biological children. The judgment recorded that, at the time the Trust Deed was executed, she had experienced miscarriages and difficulties carrying pregnancies to term, and that the Donor was aware of these difficulties. The judgment further recorded the first applicant’s account that she and the Donor discussed adoption as an option, and that he advised her not to rush because she was still young.

The Donor died before the adoptions occurred. In 1955 and 1957, subsequent to the Donor’s death, the first applicant lawfully adopted the second and third applicants. The other children of the Donor had biological children, and those descendants (grandchildren and great-grandchildren of the Donor) were among the opposing respondents, because if the adopted children were excluded from the category of “descendants” and related terms, the first applicant’s one-fourth capital share would devolve elsewhere within the donor’s bloodline.

The judgment treated as central and effectively common cause the practical consequence of interpretation: if the second and third applicants were not “children”, “descendants”, “issue”, or “legal descendants” within the meaning of the Trust Deed, then upon the first applicant’s death her capital share would be distributed as if she died without qualifying descendants, with the capital passing to other beneficiaries in terms of the deed.

While the respondents raised locus standi as a point of opposition against the first applicant (contending she was only an income beneficiary), the court regarded this objection as not affecting the legitimacy of the proceedings because the second and third applicants (as potential capital beneficiaries) were properly before court and the first applicant had a substantial interest in the outcome.

3. Legal Issues

The central legal questions were whether, on a proper interpretation of the Trust Deed, the words “children”, “descendants”, “issue”, and “legal descendants” included the first applicant’s adopted children, and if not, whether the court should vary the Trust Deed under section 13 of the Trust Property Control Act 57 of 1988 so as to include them.

The dispute involved predominantly a question of law, namely the interpretive meaning of beneficiary class descriptions in a trust deed executed in 1953, and the legal effect (if any) of subsequent constitutional and statutory developments on that interpretation. It also involved the application of law to fact, in the sense that the court had to apply established interpretive rules (including the temporal approach to interpretation and the meaning attributed at the time of execution) to the facts about the trust deed’s wording, the timing of the adoptions, and the statutory environment existing at the time.

A further issue was whether constitutional equality considerations and public policy developments could justify either a constitutionally influenced interpretive approach that brought adopted children within the terms used, or a judicial variation of a private trust deed in circumstances where the trust was not of a public charitable nature. This required an evaluative component concerning the balancing of competing constitutional interests, particularly the relationship between equality and dignity on the one hand and property, privacy, dignity, and freedom of testation/disposition on the other.

Finally, the court had to determine whether the statutory prerequisites for relief under section 13 were met, particularly whether the relevant provisions produced consequences the founder did not contemplate or foresee, and whether those consequences hampered the objects of the trust, prejudiced beneficiaries, or conflicted with the public interest.

4. Court’s Reasoning

The court first disposed of the locus standi point in practical terms. It treated the respondents’ objection to the first applicant’s standing as ultimately inconsequential because the second and third applicants, as persons directly affected by the capital distribution provisions, were properly joined and had standing. The court also noted the first applicant’s substantial interest in the matter given her position as the surviving child whose capital share distribution would be determined by the interpretation sought.

On the interpretive question, the court framed the inquiry as one governed by the ordinary rules of interpretation applicable to trust instruments, with emphasis on the proposition that a trust deed of this kind “speaks” from the time of its execution. In doing so, the court referred to authority stating that the settlor’s intention is to be determined from the language used and circumstances prevailing at the time, and that subsequent events, including later statutes, cannot be used to alter that intention. Although the judgment acknowledged the modern interpretive approach described in Bothma-Batho Transport v S Bothma en Seun Transport, it treated the decisive context for this instrument as the legal and linguistic meaning at the time of execution.

A key component of the reasoning was the historical statutory setting at the time the Trust Deed was executed. The court relied on the deeming provision in section 71(2) of the Children’s Act of 1937, particularly the proviso that an adopted child would not become entitled to property devolving under an instrument executed before the adoption order unless the instrument clearly conveyed an intention that the property devolve upon the adopted child. The court treated this legislative environment as material to how a professionally drafted instrument of the period would have been framed if inclusion of adopted children had been intended.

The court regarded Cohen NO v Roetz NO and Others 1992 (1) SA 629 (AD) as binding authority with close factual similarity. It drew from Cohen the interpretive conclusions that words such as “descendants” (and associated terms) ordinarily denote blood relations in the descending line, and that in the absence of clear indications to the contrary, adopted children are excluded from those terms in instruments of the era. The court also considered that Cohen treated the professional drafting of a testamentary instrument under the 1937 legislative regime as supporting an inference that omission of express inclusion of adopted children reflected an intention not to include them.

Applying those principles, the court held that the repeated use in the Trust Deed of terms such as “children”, “descendants”, and “issue” supported the conclusion that the donor intended benefit to follow biological descent, and that the donor’s failure expressly to include adopted children—despite legal assistance and awareness that adoption was an option—supported the inference that adopted children were not within the intended beneficiary classes. The court further emphasised that the Trust Deed expressly provided for the scenario of a child dying without “issue”, which the court regarded as showing the donor contemplated and regulated childlessness within the bloodline structure he chose.

The applicants advanced constitutional and public policy arguments, contending that excluding adopted children would amount to unfair discrimination, particularly under section 9 of the Constitution. The court accepted that public policy evolves and that constitutional values have shaped public policy since 1994. It also accepted that adopted children are now placed on equal footing with biological children in various statutory contexts, including section 242(3) of the Children’s Act 38 of 2005, and that constitutional jurisprudence has influenced the interpretation and development of law.

However, the court distinguished the constitutional-era cases where courts intervened to remove discriminatory clauses in public charitable trusts, describing those matters as involving widening access to publicly available benefits (such as bursaries) without reallocating benefits from identified private beneficiaries to others. By contrast, the trust in issue was characterised as a private family trust, not conferring public benefits and not involving public institutions in the same way. The court treated this private character as significant in the balancing exercise between equality-based objections and the donor’s rights to property, dignity, and privacy.

In that context, the court placed considerable weight on the protection afforded to freedom of testation and disposition as an incident of ownership and as a constitutionally protected interest. It referred to authority recognising freedom of testation as protected under constitutional property protection and dignity considerations, and it drew analogies to contractual autonomy where courts show restraint in striking down private arrangements on public policy grounds. The court reasoned that an approach that too readily invalidates or rewrites private dispositive instruments would undermine the meaning of freedom of testation and the rule of law values requiring legality and predictable application of established doctrine.

In addressing section 13 of the Trust Property Control Act, the court stated that two jurisdictional requirements must be satisfied: first, that the impugned provision brings about consequences the founder did not contemplate or foresee; and second, that those consequences hamper the founder’s objects, prejudice beneficiaries, or conflict with the public interest. The court found that these requirements were not met. It reasoned that the donor was aware that adoption was an option and yet did not draft the Trust Deed to include adopted children, and that he expressly dealt with the possibility of a child dying without “issue”. On that basis, the court was not prepared to conclude that the consequences were unforeseen. It further held that the donor’s object—providing income to his children and capital to their descendants in the bloodline sense—was achieved by the existing wording, and that section 13 was not intended as a mechanism by which persons who were not beneficiaries could be made beneficiaries. The court also relied on legality-based reasoning, citing authority cautioning against deciding cases on perceived fairness rather than applicable law.

Overall, the court concluded that, given the binding authority of Cohen, the interpretive rules applicable to an instrument of this period, the private nature of the trust, and the failure to satisfy the statutory prerequisites for variation, the application could not succeed.

5. Outcome and Relief

The court dismissed the application. It refused both the primary declaratory relief (that the relevant terms in the Trust Deed include the second and third applicants) and the alternative relief under section 13 of the Trust Property Control Act 57 of 1988 to amend the Trust Deed to include them.

The court ordered the applicants to pay the costs of the application. By agreement between the parties, those costs were directed to be paid by the LJ Druiff Trust (Registration Number T1280).

Cases Cited

Cohen N.O. v Roetz N.O. and Others [1991] ZASCA 173; 1992 (1) SA 629 (AD)

Boswell en Andere v Van Tonder 1975 (3) SA 29 (A)

Minister of Education and Another v Syfrets Trust Ltd N.O. (in its capacity as trustee for the time being of the Scarbrow Bursary Fund Testamentary Trust) and Another [2006] 3 All SA 373 (C); 2006 (4) SA 205 (C)

Ex Parte BOE Trust Ltd 2009 (6) SA 470 (SCA)

Nkala v Harmony Gold Mining Company Limited 2016 (5) SA 240 (GJ)

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC)

In re Heydenrych Testamentary Trust and Others 2012 (4) SA 103 (WCC)

Harksen v Lane N.O. [1997] ZACC 12; 1998 (1) SA 300 (CC)

S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC)

AB v Minister of Social Development (Centre for Child Law as Amicus Curiae) [2015] 4 All SA 24 (GP)

Blower v Van Noorden 1909 TS 890

Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 (4) SA 938 (CC)

Bothma-Batho Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA)

Moosa v Jhavery 1958 (4) SA 165 (N)

Re Marshall (Deceased); Barclays Bank Limited v Marshall and Others [1957] 3 All ER 172 (CA)

Re Valentine’s Settlement; Valentine and Others v Valentine and Others [1965] 2 All ER 226 (CA)

Re Brinkley’s Will Trusts; Westminster Bank Limited v Brinkley and Another [1967] 3 All ER 805 (Ch)

Kinloch N.O. and Another v Kinloch 1982 (1) SA 679 (A)

BOE Trust Ltd & Others NNO 2013 (3) SA 236 (SCA)

Bhe and Others v Magistrate, Khayelitsha, and Others [2004] ZACC 17; 2005 (1) SA 580 (CC)

Emma Smith Educational Fund v University of KwaZulu-Natal 2010 (6) SA 518 (SCA)

Ex parte President of the Conference of the Methodist Church 1993 (2) SA 697 (C)

Argus Printing and Publishing Company Limited v Darby’s Artware (Pty) Limited and Others 1952 (2) SA 1 (C)

Leicester Properties v Farran 1976 (1) SA 492 (D)

Brisley v Drotsky 2002 (4) SA 1 (SCA)

SA Sentrale Ko-op Graan Maatskappy Bpk v Shifren 1964 (4) SA 760 (A)

Magna Alloys and Research (SA) (Pty) Ltd v Ellis [1984] ZASCA 116; 1984 (4) SA 874 (A)

Mort N.O. v Henry Shields-Chait 2001 (1) SA 464 (C)

Ferreira v Levin N.O. and Others; Vryenhoek and Others v Powell N.O. and Others 1996 (1) SA 984 (CC)

Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W)

De Lange v Methodist Church and Another 2016 (2) SA 1 (CC)

Heymann v Administrators Estate Heymann 1932 WLD 45

Administrators, Estate Richards v Nichol and Another 1996 (4) SA 253 (C)

Potgieter v Potgieter N.O. 2012 (1) SA 637 (SCA)

Bredenkamp and Others v Standard Bank of South Africa Limited 2010 (4) SA 468 (SCA)

Legislation Cited

Trust Property Control Act 57 of 1988, section 13

Children’s Act 38 of 2005, section 242(3)

Children’s Act 31 of 1937, section 71(2)

Children’s Act 33 of 1960, section 74(2)

Child Care Act 74 of 1983, section 20(2)

Intestate Succession Act 81 of 1987, sections 1(4)(e) and 1(5)

Wills Act 7 of 1953, section 2D

Law of Succession Amendment Act 43 of 1992, section 4

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, section 8(c)

Constitution of the Republic of South Africa, 1996, sections 1, 8(2), 8(3), 9, 10, 25, 36(1), and 39(2)

Adoption Act 1950 (United Kingdom), section 13(2) (referred to for comparative purposes)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, on a proper interpretation of the Trust Deed executed and amended in 1953, the words “children”, “descendants”, “issue”, and “legal descendants” bore their ordinary meaning at the time and, in that context, referred to blood descendants rather than adopted children, absent clear language indicating inclusion of adopted children.

The court held further that Cohen N.O. v Roetz N.O. and Others 1992 (1) SA 629 (AD) was binding and materially applicable, supporting the conclusion that “descendants” in its ordinary sense excludes adopted children unless a contrary intention appears from the instrument.

The court also held that the requirements for variation under section 13 of the Trust Property Control Act 57 of 1988 were not satisfied. In particular, it was not established that the relevant provisions produced consequences the founder did not contemplate or foresee, nor that they hampered the trust’s objects, prejudiced beneficiaries (in the sense contemplated by the section), or conflicted with the public interest in a manner justifying judicial variation of this private family trust deed.

LEGAL PRINCIPLES

Interpretation of a trust deed is anchored in the language used, read in context, and (for instruments of this kind) the meaning of terms is determined with reference to the circumstances and legal position at the time of execution, rather than being altered by subsequent statutory or social developments.

In instruments executed under the adoption-law regime that required clear expression to include adopted children in pre-existing instruments, terms such as “descendants” and “issue” in their ordinary meaning were treated as indicating bloodline succession, and adopted children are excluded unless the instrument clearly conveys an intention to include them.

Although constitutional values influence public policy and may justify intervention in appropriate cases, the judgment treated private family dispositive instruments as raising distinct considerations from public charitable trusts, and it emphasised restraint in using constitutional values to rewrite private instruments where doing so would significantly intrude upon the owner’s right to dispose of property.

Relief under section 13 of the Trust Property Control Act 57 of 1988 requires proof of both jurisdictional elements: unforeseen or uncontemplated consequences, and a further showing that the provision hampers the founder’s objects, prejudices beneficiaries, or conflicts with the public interest. The judgment treated section 13 as not designed to convert non-beneficiaries into beneficiaries in the absence of the statutory predicates, and it emphasised legality-based constraints on courts deciding matters on perceived fairness rather than established legal rules.

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