Gregg and Another v Pigott and Others
| Jurisdiction | England & Wales |
| Judgment Date | 29 March 2012 |
| Date | 29 March 2012 |
| Court | Chancery Division |
Chancery Division
Before Mr Mark Herbert, QC
The court could construe an existing trust in such a way as to eliminate discrimination against adopted children, if that could be achieved without unfairness.
Mr Mark Herbert, QC, sitting in the Chancery Division as a deputy judge of the High Court, so held on a claim under Part 8 of the Civil Procedure Rules brought by the claimants, William Stewart Gregg and Nigel Humphrey Smith, as two of the trustees of a trust created by Denys Malcolm Erskine on Dec ember 10, 1948, as to the construction of the phrase "statutory next of kin".
The first beneficial trust was in favour of the settlor's daughter, Margaret Lucile Erskine (known as Lucile), for life. She died in August 2010 without children or other descendants. The first two defendants, Christopher Richard Erskine Pigott and Stephen Robert Erskine Pigott, were the adopted ch ildren of her sister, her only sibling, who had died in the 1980s. The third defendant, Fiona Margaret Lady Mottram, a niece of the settlor, was joined to represent all the cousins, many of whom had not been identified.
Mr Edward Hewitt for the claimants; Mr David Rowell for the first and second defendants; Mr Charles Holbech for the third defendant.
MR MARK HERBERT, QC, said that the whole of the trust fund vested in Lucile's statutory next of kin on the footing that she had died a spinster. The only question was whether the first and second defendants were entitled to the trust fund as the persons who were Lucile's statutory ne xt of kin at her death, or whether their claims were negated by their having been adopted.
His Lordship accepted the third defendant's submissions that section 50(1) of the Administration of Estates Act 1925 provided a statutory definition of the phrase "statutory next of kin". It meant the persons who qualified under the intestacy provisions in the 1925 Act itself and, applying that mea ning, Lucile's adopted nephews did not qualify.
The question then arose: to what extent did the European Convention on Human Rights affect private property rights established by a 1948 settlement, made before the Convention had even been agreed by the Council of Europe, and over 50 years before it became part of English law?
In the settlement it was possible to contemplate and even to find a retrospective application of the principle of non-discrimination. Section 3 of the Human Rights Act 1998...
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