Influence of European Convention on Human Rights on statutory ‘next of kin’ definition – Gregg v Pigott

 In Wills

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Human Rights on Next of Kin

In Gregg v Pigott[2012] EWHC 732  Mark Herbert QC (sitting as a Deputy High Court Judge) held that the European Convention on Human Rights (“ECHR”) changed the construction of a settlement made before the Human Rights Act 1998  (HRA 1998) so that adopted children benefited instead of various cousins.

The facts

The settlement was created in 1948. The relevant provisions were in favour of the “statutory next of kin”. That phrase referred to the then existing legislation and so excluded adopted children. The life tenant died in 2010, when it became necessary to construe the phrase. By then, the legislation had been amended to include adopted children but this (it was held) did not affect the definition in the settlement. However, on 2nd October 2000 the HRA 1998 had come into force. The European Court of Human Rights is strongly against discrimination against adopted children.

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Did this affect the construction of the settlement, even though it had come into existence prior to the HRA 1998, and even before the ECHR was itself signed?  The Deputy Judge held that it did.

From his decision it can be seen that this will not be the case in some settlements and the extent to which it will be the case will depend upon the degree to which interests that are affected. It seems unlikely, that it will affect vested or merely contingent interests.

Implications now

The surprising implication, though, is that the beneficiaries of settlements (whether created by trusts or Wills) will in some circumstances have changed, even to the extent of not reflecting the settlor’s intentions. So, a settlor who wished to exclude a specific class (e.g. adopted children) may have defined them by reference to then-existing legislation (as was the case in Gregg) or by reference to a generally understood definition (as was arguably the case in the ECHR’s decision in the case of Pla[1]). Those definitions may now be re-construed to include that specific class.

Implications for the future

Gregg concerned adopted children. It is not, however limited to that and might well extend further. Marriage is currently reserved for male/female unions. In the future it may be available for same-sex unions. A settlor who was totally against same-sex marriage who created a settlement for his ‘married grandchildren’ may later find the settlement re-construed to benefit grandchildren in a same-sex marriage.

Practice point

Settlors must craft terms precise enough to avoid this process of re-construction, since it is plain that the decision cannot affect settlements where the exclusion of the class is plain from its terms (and private individuals are free to discriminate under ECHR provisions). However, what Gregg means is that the construction of words or phrases used now may be different to the construction they bore when first used, or before the HRA 1998.

[1] (2004) 18 BHRC 120

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