Wilkinson and Another v Crawford N.O. and Others

The case concerned the interpretation of a private trust deed executed in 1953 by the late Louis John Druiff. The trust provided benefits to his four children and, upon their deaths, to their ‘children’, ‘descendants’, ‘issue’ or ‘legal descendants’. At the time of execution, legislation (the Children’s Act 31 of 1937) required a clear intention to include adopted children as beneficiaries under testamentary instruments. One of Druiff’s daughters, Dulcie Helena Harper, later adopted two children: David Louis Ayscough Wilkinson and Amanda Bridget Truter. Fearing that her adopted children would be excluded from benefitting under the trust, Harper and, later, her adopted children sought a declarator that the impugned terms included adopted children, or alternatively that the trust deed be varied under section 13 of the Trust Property Control Act. The High Court and the majority of the Supreme Court of Appeal held that adopted children were excluded. The applicants appealed to the Constitutional Court.

Leave to appeal was granted and the appeal was upheld. The order of the Supreme Court of Appeal was set aside. The Court declared that the exclusion of adopted children constituted unfair discrimination and was contrary to public policy and unenforceable. The adopted children of Ms Harper were declared capital beneficiaries of a quarter share of the trust capital. The trust was ordered to pay the costs of the application.

This case is a landmark decision on the intersection between freedom of testation and constitutional equality. It establishes that private trusts and testamentary instruments are subject to constitutional scrutiny and that discriminatory provisions excluding adopted children are contrary to public policy. The judgment significantly advances the constitutional protection of adopted children and clarifies that freedom of testation does not trump the equality clause.