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I read with interest a recent Constitutional Court ruling that adopted children are descendants. As such they are beneficiaries of a trust in which the beneficiaries are defined to include descendants.

The report referred to the Children’s Act 2006 which, evidently, defines adopted children as descendants. However, in this case, the trust deed was signed prior to 2006. It was argued that the Act could not be applied retrospectively.

The Con Court found in favour of the adopted children.

I struggled with the Children’s Act, with which I am not familiar and couldn’t find the relevant definition. However, I did find it in the Intestate Succession Act, which dates back to 1987.

Because this ruling came from the highest court, it will apply to all such cases.

What would have happened if the trust deed had said something like “descendants excluding adopted children”?

Then, in my view, the adopted children would, in fact, have been excluded. My reasoning is that the founder of a trust nominates the beneficiaries by name or by an identifiable class of people. In other words, he or she could name only say, 2 out of 5 children and the other three would not be beneficiaries. Likewise the identifiable class can contain exclusions.

So, the Con Court ruling was not about whether it was fair to exclude adopted children but it was about the interpretation of the word “descendants”.


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