In Harper and Others v Crawford NO and Others  ZAWCHC 78 the Western Cape High Court (Dlodlo J) was approached on application by the daughter of the donor of a trust that was set up in 1953. The income beneficiaries are the four children of the donor, and their descendants are the capital beneficiaries. The trust deed makes provision for the event that one of the income beneficiaries could be childless, in which case that one quarter of the capital would accrue to the descendants of the other income beneficiaries. The donor was aware that the applicant had miscarriages and she discussed the possibility of adoption with him. He advised her not to be hasty as she was still young. He died before she adopted two children in the late 1950’s.
The applicant asked the court to interpret the deed in such a way that her adopted children be regarded as her descendants, as to exclude them would be contrary to current public policy and section 9 of the Constitution. The court distinguished the line of cases which started with Minister of Education v Syfrets, and held that those are all cases where a trust with a public function and character was involved where equality would carry more weight. The court further asked the question why it should intervene and change a person’s decisions about the disposal of his property after his death while it would not have been competent to do so during his life?
The court also held that the requirements of section 13 of the Trust Property Control Act were not satisfied and that the court could therefore not amend the trust deed. The application was dismissed.