Tuesday 23 June 2020
Wilberforce features twice in June edition of Trusts & Trustees
Two articles written by members of Chambers have been published in Oxford University Press’ June edition of Trusts & Trustees.
Gilead Cooper QC has published an article entitled ‘The adoption issue: the illegitimate logic of Hand v George‘, the abstract for which reads as follows:
Article 8 of the Convention for the Protection of Human Rights and Freedoms guarantees the right to respect for family life and draws no distinction between legitimate and illegitimate children. This has been interpreted by the English court as meaning that the Adoption Act 1976, which required an adopted child to be treated as a child of the adopter (and not the child of any other person), is discriminatory in failing to apply retrospectively to the construction of an existing instrument such as a will or a trust. But the position of adopted children is different from that of illegitimate children: an illegitimate child has no family other than its natural parents, whereas an adopted child remains the child of its natural parents unless and until the law provides otherwise. The 1976 Act did not “deprive” an adopted child of its rights against the family that adopted it: on the contrary, the Act preserved the child’s rights under pre-existing instruments. There is no infringement of the right to respect for family life in this arrangement—it is simply a question of which family the right attaches to. Furthermore, since a will “speaks from death”, its meaning cannot be changed retrospectively. The decision in Hand v George to “read down” the provisions of the 1976 Act so as to interpret words expressly stating that the Act “does not” apply to an existing instrument as meaning that it “does” apply to an existing instrument was not warranted by anything in the Convention, and exceeded the limits of statutory construction by overriding the clear and express intention of parliament.
Zoë Barton QC and Tara Taylor have published an article entitled ‘Insolvency within your trust: bankrupt settlors, insolvent companies and insolvent trusts‘, the abstract for which reads as follows:
Anecdotally at least, there seems to be a trend towards increased litigation involving insolvency practitioners pitted against trustees. This article considers the so-called ‘insolvent trust’ and the challenges these present to their trustees, with particular reference to the Z Trust litigation. It goes on to discuss certain claims that may be faced by insolvent settlors and companies involving the adjustment of antecedent transactions for the benefit of creditors, and how trustees can protect themselves in the face of such claims.