Wilkinson and Another v Crawford N.O. and Others

In 1953, Mr Louis John Druiff executed a trust deed for the benefit of his four biological children and their descendants. One of his children, Ms Dulcie Helena Harper, had no biological children but later adopted two children (the applicants) in 1955 and 1957. The trust deed used the terms "children", "descendants", "issue" and "legal descendants" without expressly mentioning adopted children. The applicable legislation at the time (1937 Children's Act) required testamentary instruments to "clearly convey the intention" to include adopted children, otherwise they would be excluded. After Ms Harper's death in 2017 as the last surviving child of the donor, her adopted children sought a declaration that they were beneficiaries entitled to her quarter share of the trust capital.

• Whether the words 'children', 'descendants', 'issue' and 'legal descendants' in the trust deed include adopted children
• Whether the exclusion of adopted children from a trust deed constitutes unfair discrimination contrary to public policy
• Whether discrimination on the ground of 'birth' in section 9(3) of the Constitution includes adoptive status
• Whether the proviso in section 71(2) of the 1937 Children's Act applies to this trust deed
• The interplay between freedom of testation and the right to equality
• Whether the trust deed should be varied under section 13 of the Trust Property Control Act

The Constitutional Court granted condonation, substituted the deceased first applicant with his executors, granted leave to appeal, upheld the appeal, and set aside the Supreme Court of Appeal order. The Court declared that: (1) the impugned words exclude adopted children; (2) this exclusion constitutes unfair discrimination contrary to public policy and is unenforceable; (3) the adopted children are declared capital beneficiaries of a quarter share of the trust capital; and (4) the trust must pay the costs.

Where a testamentary instrument (including a trust deed) excludes adopted children, this constitutes unfair discrimination on the ground of birth or adoptive status contrary to section 9 of the Constitution. Such discrimination is contrary to public policy and the discriminatory provision is unenforceable, even in private trusts. Public policy is informed by constitutional values and is determined at the time of enforcement, not execution. While freedom of testation is constitutionally protected through the rights to property, dignity and privacy, it does not permit unfair discrimination. The exclusion must be treated as pro non scripto and given no effect.

Mhlantla J observed that: (1) adopted children have historically faced patterns of disadvantage and social stigma similar to children born outside marriage; (2) the best interests of the child principle and the importance of family life support protecting adopted children from discrimination; (3) there is a distinction between public charitable trusts (subject to stricter scrutiny) and private trusts, but both remain subject to public policy constraints; (4) international and foreign law from Canada, the ECHR, Australia, Germany and the Netherlands recognizes the vulnerability of adopted children and generally protects against discrimination, though approaches differ regarding private versus public bequests; and (5) courts must exercise judicial restraint but not to the extent of countenancing unfair discrimination. Majiedt J (dissenting) observed that freedom of testation represents choices made in a person's "inner sanctum" deserving significant protection, and that there is an important distinction between discriminatory conditional bequests and outright disinheritance. Jafta J observed that section 71 of the 1937 Children's Act does not define words used in testamentary instruments but merely qualifies the deeming provision.

This is a landmark case establishing that: (1) discrimination on the ground of 'birth' in section 9(3) of the Constitution includes discrimination against adopted children based on their adoptive status; (2) even private trusts cannot enforce provisions that unfairly discriminate, as public policy in the constitutional era requires adherence to constitutional values; (3) freedom of testation, while important and constitutionally protected through rights to property, dignity and privacy, must yield to equality considerations where unfair discrimination is established; (4) courts will determine public policy at the time of enforcement rather than execution of testamentary instruments; and (5) adopted children are a vulnerable group warranting constitutional protection from discrimination. The case extends constitutional equality protections into the private sphere of testamentary dispositions.