Re JC Druce Settlement – The Human Rights Act And Retrospective Application To Trust Settlements

25 Mar 2020, 18 mins ago

How the Human Rights Act (HRA) applies to civil law is a question which crops up frequently in the English courts. This is unsurprising given its multiple unique and nuanced applications to civil law. These questions are often compounded by the complication of retrospective legislation.

Last year the High Court heard the case of Re JC Druce Settlement, a case relating to the rights of adopted and illegitimate children and whether they qualified as beneficiaries of a will created in 1959, under laws which explicitly disqualified them as beneficiaries. The court heard argument as to whether the HRA provided sufficient mechanisms to qualify their legitimacy as beneficiaries and allow them part and equal access to the funds of the will.

The claimants were made up of seven family members who argued they should not be excluded from the will merely because they were adopted, legally illegitimate or, in the case of the last claimant, an unborn child. According to the legislation under which the will had been created, they would not have been granted access to it. Therefore, the claim hinged on whether the HRA and Article 14 of the ECHR (which governs the prohibition against discrimination) could be utilised to prove that it would be discriminatory to deny the claimants a portion of the will.

The Family Law Reform Act 1987 would have provided the legal mechanisms to allow the claimants access to the will. However, the will was written before the Act was ratified and the Act did not include retrospective legislative clauses. Judge Keyser QC found that The Family Law Reform Act 1987, although failing to include retrospective legislative clauses, could be interpreted retrospectively with the aid of Section 3 of the HRA. Section 3 of the HRA allows judges to interpret legislation in a way which is compatible with the rights granted under the ECHR. With reliance on a Section 3 statutory interpretation Judge Keyser QC found that omitting adopted, illegitimate or unborn children as beneficiaries would be in direct contravention of Article 14 of the ECHR and thus discriminatory. Consequently, the children were granted equal access to the will.

The broad implications of this judgment are that:

  1. What is legally deemed as discriminatory today under ECHR law can and likely will have retrospective impact on not only laws made before 1998 but also wills made prior to 1998.
  2. Discriminatory legislation made prior to 1998 does not necessarily require parliamentary repeal to be appropriately amended. The HRA is afforded a special constitutional status which provides interpretative mechanisms for modern judges against outdated legislation. This allows judges to circumvent the requirement of micromanagement from Parliament and allows them to utilise Section 3 interpretations to make minor alterations which will continue to have substantial implications for pieces of age-old legislation – and now – age-old wills.


The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.  

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