Gregg & anr v Pigott & ors [2012] EWHC 732 (Ch)

Analysis

The court was asked to construe the phrase ‘statutory next of kin’ in a settlement that was executed in 1948. It was common ground that, under the classic rules of construction, that phrase would have excluded adopted children because the intestacy rules in 1948 did not benefit adopted children. However, the adopted children argued that they were entitled to capital and income under the trust in preference to their distant cousins who would have benefited under the intestacy rules as enacted in 1948. The adopted children argued that to prevent them benefiting would be a breach of their article 8 (right to family life) and article 14 (non-discrimination) rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was adopted into English law under the Human Rights Act 1998.

Held

On the proper construction of the trust, as interpreted, having regard to the Human Rights Act 1998 and the jurisprudence of the European Court of Human Rights, the adopted children rather than the cousins were entitled to benefit.

1. 1. the adopted children’s article 8 and article 14 rights were engaged, Marckx v Belgium (A/31) (1979-80) 2 EHRR 330 applied.
2. 2. The European Court of Human Rights’ decision in Pla and Puncernau v Andorra (2006) 42 EHRR 25 suggests that the national court should:
3. (a) avoid a decision which is unreasonable, arbitrary or blatantly inconsistent with the prohibition of discrimination;
4. (b) avoid putting words into the settlor’s mouth, but should construe the disposition in a way which corresponds to national law and the Convention as interpreted by the European Court of Human Rights; and
5. (c) if the disposition, as worded by the settlor, made a specific distinction between biological and adopted children, the national court must give effect to this.

The priorities of the above principles were not made explicit by the European Court of Human Rights.

1. 3. Section 3 of the Human Rights Act 1998 can apply retrospectively in certain circumstances when it is not unfair for it to do so, Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 applied.
2. 4. This case had special features which meant that it was not unfair for the Human Rights Act 1998 to apply retrospectively:
3. (a) The settlement did not contain an explicit exclusion of adopted children.
4. (b) The intestacy law under English law had been altered so that it now complies with article 14.
5. (c) A trust for a person’s next of kin was unique because it does not create vested or even contingent interests but rather a mere expectancy.
6. (d) Although an expectancy can be assigned for valuable consideration, there was no evidence that such an assignment had been effected or proposed.
7. (e) The contest was between relatively distant cousins (not all of whom had been ascertained) on the one hand and the adopted children who had been full members of the family for 60 years.
8. (f) The settlement had come to an end and there would be no continuing problems for the trustees or the court in identifying future beneficiaries.

JUDGMENT MR MARK HERBERT QC [1] This Part 8 claim concerns the construction of the phrase ‘statutory next of kin’ in an English settlement made in 1948, and the possible effect of the Human Rights Convention on that construction. [2] The basic facts are not complicated and are not in dispute. The settlement was made …

Continue reading "Gregg & anr v Pigott & ors [2012] EWHC 732 (Ch)"