A notarial deed of trust executed in 1953 granted the benefits to legal descendants including a “child or any children” of descendants. A lower court held that because adopted children were not specifically included they could not benefit from the inheritance (which was the law in 1953). The Constitutional Court held that the words in the trust deed excluded adopted children but this constitutes unfair discrimination against adopted children and is consequently contrary to public policy and unenforceable. The adopted children were declared capital beneficiaries of a share of the trust capital.
The appropriate time to interpret the trust deed, and the stepchildren’s status, is the present time. Although freedom of testation is a central principle of testate succession and testators are permitted to dispose of their assets freely, this only applies insofar as the law places restrictions on this freedom. One of the restrictions is that clauses in testamentary instruments that are contrary to public policy are unenforceable (this law preceded the Constitution). The Constitution is the starting point in determining the content of public policy. There is no impediment because statutes and contracts are not normally interpreted retrospectively. The question is: Can a court be expected to enforce testamentary instruments whose provisions are contrary to public policy at the time of enforcement? The answer is: No.
Courts do not have the general power to vary trusts but may do so in exceptional circumstances including in the light of constitutional considerations, even with a private trust which will be interfered with minimally. Section 9(3) of the Constitution prohibits discrimination on the ground of “birth”. Birth includes adoption because an adopted child may face discrimination simply because they were not born of their adoptive parents. Not to be treated as a fully-fledged member of a family because one was not born of their adopted parents stifles the value of, and the right to, human dignity and the best interests of the child which are paramount under the Constitution. Therefore the 1953 trust deed, to the extent it unfairly discriminated against the adopted children, was therefore contrary to public policy and unenforceable by the court to that extent.
[Wilkinson and Ano v Crawford N.O. and Others  ZACC 8]