14 June 2021
“Sometime before his death, my father established a family trust which contained properties that were rented out to generate income for my mother. In accordance with the trust deed however, once my mother dies, the income from the properties would go to the children of my mother and father. I have an adopted brother and 2 biological sisters. There is now a debate as to whether my adopted brother also qualifies to benefit from the family trust. What is the legal position?”
In the past it was uncertain whether an adopted child was entitled to benefit from a family trust as they were not related by blood to their adoptive parents. The Childrens Act 31 of 1937 provided that an adopted child would not by virtue of adoption become entitled to any property devolving on any child of his or her adoptive parent unless an instrument clearly conveyed the intention that the property should devolve upon the adopted child.
Fortunately, times have changed and the Childrens Act of 2005 now makes provision for the inclusion of adopted children and that such children are seen as the biological children of the parent(s). Essentially, this means that even though a child may not be related by blood, the child will be considered a biological child as if they are related by blood to their new parent(s).
Against this background, our courts have also had cause to consider whether or not an adopted child can benefit from a family trust. In a recent judgement by our Constitutional Court, it was held that the exclusion of adopted children was held to constitute unfair discrimination and was held to be contrary to public policy and therefore unenforceable.
Nothing stops a trust founder or testator (in the case of a trust created in a will) to specifically exclude any person, even an adopted child from inheriting. But unless a trust founder specifically excluded an adopted child from benefitting from a trust, our law determines that generally when the children of a founder stand to benefit from a trust, this will include adopted children. In light of this decision, your adopted brother could possibly benefit from the family trust. However, it would be prudent to consult an attorney for a specific assessment of your family trust and its provisions.