It is now widely accepted that families are not necessarily nuclear in nature and can (for example) include children who are not related by blood. Family trusts and wills, however, have been slow to evolve with mainstream society's acceptance largely because of the historic drafting of many trust deeds and wills. As a result, there has been an increase in court cases about which relations can benefit from family wealth.
Marcus v Marcus [2024] PT – 2023 - 000541 is the most recent such case, where a schism between brothers ended up in an application before the Court, for it to determine whether one of the brothers was the product of an infidelity (and therefore not the biological child of the settlor of the trust) and, if so, whether the word "children" in the trust deed included "step-children".
Marcus v Marcus – the background
Edward and Jonathan Marcus were brought up by Stuart and Patricia Marcus. Stuart was a very successful toy and game manufacturer, who settled a large portion of his wealth onto trust for his "children". In 2010, Patricia told Edward that his true father was Sydney Glossop, a partner in a Norwich law firm. Stuart (who died in 2019) did not know his wife had been unfaithful and created the trust in 2003 believing that he was Edward's biological father. In 2023, Patricia told Jonathan about Edward's parentage.
Marcus v Marcus – the claim
Shortly thereafter, Jonathan issued a claim that resulted in the Court determining two issues:
- On the balance of probabilities is Edward Stuart's biological son?
- Does the word "children" in the trust deed include "step-children"? – i.e. could Edward benefit from the trust?
Whilst DNA evidence, accepted by the judge, concluded that it was more likely than not that Edward and Jonathan were half-brothers, this did not settle the first issue. This is because Edward proposed that it was Jonathan, rather than him, who was not Stuart's biological son.
This meant Patricia's and Edward's witness evidence – which had been tested under cross-examination at trial – needed to be assessed by the judge. Patricia explained that her infidelity with the, much older, Mr Glossop was a one-off encounter. Edward (who is older than Jonathan) recalled that from about the age of five the family home received visits by a "white haired old man". The judge accepted Patricia's evidence and concluded that, on the balance of probabilities, Edward was not Stuart's biological son.
Therefore, the second issue needed to be determined, i.e. the meaning of "children" in the trust deed. A strict test of construction was applied, the Court being required to assess what a reasonable person, having all the background knowledge available to the parties to the claim, would have understood the language to mean. The judge concluded that the term "children" in a trust deed or will would not normally include stepchildren unless the context indicated otherwise. Looking at the context in this case, particularly that Stuart believed Edward was his biological child, the judge ruled that the word "children" does include "step-children", meaning Edward is a beneficiary of a valuable family trust.
Key takeaways
In Marcus v Marcus a stepchild was considered to fall within the definition of "children". But even where a stepchild is treated as a child of the settlor or testator, that child may not benefit from a family trust or will.
Looking more widely, there is legal uncertainty about whether all children born by a surrogate or as a result of fertility treatment using donated gametes fall within the traditional definitions of "children", "issue" and "descendent". This is an area of law requiring development.