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England and Wales High Court (Chancery Division) Decisions
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Cite as:  EWHC 3701 (Ch)
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
IN THE J C DRUCE SETTLEMENT DATED 10 DECEMBER 1959
London, EC4A 1NL
B e f o r e :
Sitting as a Judge of the High Court
| (1) RICHARD EVERARD MONKCOM
(2) STAWELL MARK SEARLE
(As Trustees of the JC Druce Settlement dated 10 December 1959)
Crown Copyright ©
JUDGE KEYSER QC:
"(c) 'The Beneficiaries' means all the male descendants of the Settlor's brothers and sisters Madeline Pothecary Charles Claridge Druce Winifred Lily Sayer and Alexander George Druce who are already in being or shall be born before the Vesting Day as hereinafter defined
(d) 'The Vesting Day' means the day on which shall expire the period of Sixty years from the execution of this deed or the day on which shall expire the period of Twenty one years after the death of the survivor of those of the Beneficiaries who are in existence at the time of execution of this deed whichever shall first occur".
"The Trustees shall hold the Trust Property upon the following trusts—
(a) Until the Vesting Day the Trustees shall pay or apply the income and may in their absolute discretion from time to time pay or apply the whole or any part of the capital of the Trust Property for or towards the education or benefit of all or such one or more of the Beneficiaries for the time being living in such shares if more than one and in such manner as the Trustees shall in their absolute discretion think fit
(b) On the Vesting Day the Trustees shall hold the Trust Property or such part thereof as shall not have been paid transferred or applied under any trust or power herein contained upon trust for such of the Beneficiaries as are then living in such shares as the Trustees shall on or before the Vesting Day determine and in default of such determination in equal shares
(c) Subject as aforesaid the Trustees shall stand possessed of the Trust Property in trust for such of the nephews of the Settlor (the sons of the said Madeline Pothecary and Winifred Lily Sayer) as are living at the date of this Settlement in equal shares absolutely".
(a) any question of construction has arisen out of the terms of a will or a trust; and
(b) an opinion in writing given by a person who has a 10 year High Court qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990, has been obtained on that question by the personal representatives or trustees under the will or trust,
the High Court may, on the application of the personal representatives or trustees and without hearing argument, make an order authorising those persons to take such steps in reliance on the said opinion as are specified in the order.
(2) The High Court shall not make an order under subsection (1) if it appears to the court that a dispute exists which would make it inappropriate for the court to make the order without hearing argument."
Category 2: Legitimacy
"In this Act and enactments passed and instruments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them, or the father and mother of any person through whom the relationship is deduced, have or had been married to each other at any time."
Section 19(1) provides in part:
"In the following dispositions, namely—(a) dispositions inter vivos made on or after the date on which this section comes into force [that is, 4 April 1988] …references (whether express or implied) to any relationship between two persons shall be construed in accordance with section 1 above."
"(1) An adopted child shall be treated in law—
(a) where the adopters are a married couple, as if he had been born as a child of the marriage (whether or not he was in fact born after the marriage was solemnized);
(b) in any other case, as if he had been born to the adopter in wedlock (but not as a child of any actual marriage of the adopter).
(6) Subject to the provisions of this Part, this section—
(a) applies for the construction of enactments or instruments passed or made before the adoption or later, and so applies subject to any contrary intention; and
(b) has effect as respects things done, or events occurring, after the adoption, or after 31st December 1975, whichever is the later."
However, paragraph 6(1) of Schedule 2 to the Act provides:
(a) does not apply to an existing instrument or enactment in so far as it contains a disposition of property, and
(b) does not apply to any public general Act in its application to any disposition of property in an existing instrument or enactment."
"The third question is whether it is possible for the legislation concerning adopted, illegitimate and legitimated children to be interpreted under section 3 of the 1998 Act so as to be compatible with Convention rights under section 3 of the 1998 Act, rather than for that legislation merely to be declared to be incompatible with the 1998 Act under section 4 of the 1998 Act. Although it has been recognised that, apart from the 1998 Act, there is no doubt how the legislation on adopted children operates by excluding, subject to an expression of a contrary intention, adopted children in instruments containing dispositions which pre-date the relevant legislation, and what was the purpose and intent of the legislation, it has been decided that, since section 3 of the 1998 Act is not limited to cases of ambiguity, it is possible to interpret the legislation in a compatible way by reading in wording which gives the legislation the opposite intent and effect to the effect and intent that it would have apart from the wording read into the legislation. Again, it is difficult to see how any different view could be taken of the legislation concerning legitimated children which is similarly expressed to that concerning adoption, nor to that concerning illegitimate children which, though not expressed in quite the same way, has a similar intent and effect. Accordingly, the Human Rights Act 1998, as the law now stands after the decision in Re Hand Will Trust severely restricts the extent to which effect is given to the statutory provisions limiting the property rights of adopted, illegitimate and legitimated children in relation to dispositions pre-dating the legislation concerned."
"103 Lord Rodger's concurring speech in Ghaidan refers to a distinction between judicial interpretation and judicial vandalism. The former can, in this context, include supplying additional words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights: 'If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights' (see paragraph 121 of Ghaidan)."
"104 If the 1926 Act remained in effect today in its original form, there would be considerable difficulties in using section 3(1) of the HRA simply to reverse the interpretative force of the last lines of section 5(2) of the 1926 Act. That is because the scheme of that legislation was that adopted children remained the children of their natural parents as a matter of law and did not become the children of their adoptive parents. To revise one aspect of that scheme could well be described as going against the grain of the legislation or being inconsistent with a fundamental feature of the 1926 Act. But the 1926 Act is not still in force and the scheme of the 1976 Act is entirely the opposite. It affirms that adopted children are in all respects to be treated as the children of, and only of, their adoptive parents. It is not going against the grain of that legislation to remove perhaps the last legacy of the old 1926 Act approach. In my judgment, it is well within the court's power to read down paragraph 6 of Schedule 2 to make it compliant with the claimants' Convention rights.
105 Mr Miller proposed some wording to show how a Convention-compliant version of paragraph 6 would read. He draws on the reference in Lord Rodger's speech in Wilson  1 AC 816 to the fact that vested rights which are not to be changed even by the prospective application of revising law are only those which have been acted upon: see paragraph 196 of Lord Rodger's speech cited in paragraph 92, above. His suggestion is that once read down, paragraph 6 of Schedule 2 would look like this:
'Section 39—(a) does not apply to an existing instrument or enactment in so far as (i) it contains a disposition of property, and (ii) the beneficiary of the disposition has done something to avail himself or herself of the property right in question before the coming into force of the Human Rights Act 1998'.
106 I agree that for present purposes, that wording is effective to bring the 1976 Act into compliance with the claimants' Convention rights. It does not go against the grain of the 1976 Act or have practical repercussions that the court cannot evaluate. I therefore read down paragraph 6 so that section 39(1), (5) and (6) of the 1976 Act now mean that the reference in Henry Hand's will to the child or children of his children includes any adopted grandchild and so includes the claimants."
"[T]he true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree—the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended."
"92 … This indicates that in order for a right to be 'vested' in the sense that is meant when considering the presumption against vested rights being altered by subsequent legislation, 'the particular beneficiary of the right must have done something to avail himself of it before the law is changed'. It is not suggested by the defendants in the present case that they have done anything to avail themselves of the rights that they had under Henry Hand's will.
93 In my judgment, even though the defendants' interests in Henry Hand's estate may have been vested interests in the sense that that phrase is used as a term of art of inheritance law, their interests were not vested in the sense that Lord Rodger was using it, namely that it would be unfair to apply revising legislation in a way which reduces the value of that interest because of the happening of a post-Act event.
94 I therefore hold that it is not a retrospective application of the HRA to apply it to determine whether on the proper construction of the Henry Hand will, Kenneth is to be treated as having died in 2008 with two children or without any children. The only point in time at which that question falls to be asked is when Kenneth dies. The change in the claimants' rights brought about by the coming into effect of the claimants' right to equal treatment in October 2000 is not so unfair as to lead to a presumption that Parliament did not intend them to be affected in the manner for which the claimants contend. As Lord Rodger says in paragraph 192 of Wilson:
'Since provisions which affect existing rights prospectively are not retroactive, the presumption against retroactivity does not apply. Nor is there any general presumption that legislation does not alter the existing legal situation or existing rights: the very purpose of Acts of Parliament is to alter the existing legal situation and this will often involve altering existing rights for the future. … As the sparks fly upward, individuals and businesses run the risk that Parliament may change the law governing their affairs.'"
Category 3: Overseas Adoption
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
Mr Legge submitted that, if it is impermissible for legislation to discriminate on the grounds that a child is adopted, it must be impermissible, and contrary to article 14, to discriminate against a child on the grounds that the child's mother was adopted. I consider that submission to be unanswerable, although of course I have not heard anyone to answer it, and am entirely content to proceed on the basis of Mr Legge's written opinion expressing the same conclusion.
"134 [N]ot every difference in treatment will amount to a violation of Article 14. Only differences in treatment based on an identifiable characteristic, or 'status', are capable of amounting to discrimination within the meaning of Article 14 (see Fábián, cited above, § 113 and the references therein). In this context, the Court reiterates that the words 'other status' have generally been given a wide meaning in its case-law (see Carson and Others, cited above, §70) and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Clift v United Kingdom, no. 7205/07, §§56-59, 13 July 2010). For example, a discrimination issue arose in cases where the applicants' status, which served as the alleged basis for discriminatory treatment, was determined in relation to their family situation, such as their children's place of residence (see Efe v Austria, no. 9134/06, §48, 8 January 2013). It thus follows, in the light of its objective and nature of the rights which it seeks to safeguard, that Article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of another person's status or protected characteristics (see Guberina v Croatia, no. 23682/13, §78,  ECHR 287, and ŠŠkorjanec v Croatia, no. 25536/14,  ECHR 286, §55, 28 March 2017, and also Weller v Hungary, no. 44399/05,  ECHR 530, §37, 31 March 2009).
161 In conclusion, having regard to the foregoing considerations, the Court finds that the difference of treatment suffered by the applicant, as a beneficiary of a will drawn up in accordance with the Civil Code by a testator of Muslim faith, as compared to a beneficiary of a will drawn up in accordance with the Civil Code by a non-Muslim testator, had no objective and reasonable justification.
162 In the light of the foregoing, the Court dismisses the Government's objection as to the applicant's lack of victim status, and finds that there has been a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention."
Category 4: Legitimation
"Held, that a child of the son, born out of wedlock, but legitimated according to the law of the son's domicil, by the subsequent marriage of its parents, was entitled to share with a child born after the marriage in both the realty and personalty."
Sterling J explained the matter at page 92:
"The ratio decidendi [of the decision of Kay J in In re Andros 24 Ch. D. 637] appears from the following passage at 639: 'A bequest in an English will to the children of A means to his legitimate children, but the rule of construction goes no further. The question remains who are his legitimate children. That certainly is not a question of construction of the will. It is a question of status. By what law is that status to be determined. That is a question of law. Does that comity of nations which we call international law apply to the case or not? That may be a matter for consideration, but I do not see how the construction of the will has anything to do with it. The matter may be put in another way. What did the testator intend by this gift? That is answered by the rule of construction. He intended A's legitimate children. If you ask the further question, Did he intend his children who would be legitimate according to English law or his actual legitimate children? How can the rule of construction answer that?' Then after considering the authorities, he says at 642: 'The law, as I understand it, is that a bequest of personalty in an English will to the children of a foreigner means to his legitimate children, and that by international law, as recognised in this country, those children are legitimate whose legitimacy is established by the law of the father's domicil. Thus ante nati whose father was domiciled in Guernsey at their birth, and subsequently married the mother so as to make the ante nati legitimate by the law of Guernsey, are recognised as legitimate by the law of this country, and can take under such a gift.'"
Category 5: an Unborn Child
"It is now fully settled that a child in ventre sa mere is within the intention of a gift to children living at the death of a testator; not because such a child (and especially in the early stages of conception) can strictly be considered as answering the description of a child living; but because the potential existence of such a child places it plainly within the reason and motive of the gift.
In the case of Whitelock v Hodgson, the words were 'Sons begotten and born'; and the difference between the expression 'living at the death' and 'born in the lifetime' was not even hinted at in the argument of the judgment; and a child in ventre sa mere was there held to take. In Lancashire v Lancashire, a child in ventre sa mere was considered as born, so as to satisfy the rule of presumption of revocation of a will from subsequent marriage and birth of a child. In that case, one of the Judges referred to a maxim of the civil law, that when the birth of a child happens after the death of a parent, it is, by fiction of law, referred back to his lifetime.
Upon the whole I am of the opinion that, inasmuch as it is adopted as a rule of construction, that a child in ventre sa mere is within the intention of a gift to children living at the death of a testator, because plainly within the reason and motive of the gift; so a child in in ventre sa mere is to be considered within the intention of a gift to children born in the lifetime of a testator, because it is equally within the reason and motive of the gift."
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