Wright's Trustees v Callender

Where a testamentary disposition creates a class gift with postponed vesting, the class is ascertained at vesting. However, absent a contrary indication, later legislation enlarging the category of legitimate descendants does not alter the testator’s intended meaning of “issue” or “great-grandchildren”. That meaning is assessed by reference to the law when the disposition became operative.

Further, Scots law’s recognition of legitimacy conferred by foreign law must include any limitation attached by that law. A person legitimated under English legislation, but denied capacity to inherit under an earlier English disposition, cannot claim greater capacity under an earlier Scottish disposition merely because Scots law recognises the acquired status.

Two Scottish trust dispositions created class gifts, vesting after successive liferents, in favour of “issue” and “great-grandchildren”. Three descendants had been born while their parents could not marry. They later became legitimate under English legislation enacted after both dispositions had become operative.

The trustees presented a special case to determine whether those descendants belonged to the designated classes. The Extra Division of the Inner House answered both questions affirmatively in 1992 S.C. 48.

The appeal concerned whether eligibility depended on the law at the dispositions’ operative dates or the law at vesting. It also concerned whether Scots law could recognise the descendants’ English legitimacy without recognising the statutory limitation upon inheritance under earlier dispositions.

1. Appeal allowed unanimously. The interlocutor of the Court of Session was recalled and both questions in the special case were answered in the negative.

2. Per Lord Keith of Kinkel and Lord Jauncey of Tullichettle, with Lord Lowry and Lord Mustill agreeing, construction depended upon the intention attributable to the makers of the testamentary dispositions. Although members of a class gift with postponed vesting cannot finally be identified until vesting, it does not follow that eligibility must be determined by legislation then in force.

3. The majority applied Cockburn's Trustees v Dundas (1864) 2 Macph. 1185. A testator ordinarily has the existing law in mind and is not presumed to contemplate a post-mortem change enlarging a class of beneficiaries. The expressions “issue” and “great-grandchildren”, used without contrary qualification, therefore did not include persons whose legitimacy depended solely upon legislation enacted after the dispositions became operative.

4. The ambulatory character of a will explained the different result where legislation changed between execution and death. A testator who remained capable of altering the will was taken to know the new law. That principle did not govern a change occurring after the disposition had become operative.

5. Lord Keith and Lord Jauncey also concluded that recognition in Scots law of legitimacy acquired under the Legitimacy Act 1959 had to include the limitations attached to that status. The English legislation preserved the construction and operation of earlier dispositions. Scots law should not give the acquired status a wider effect under an earlier Scottish disposition than it possessed under an equivalent English disposition. Section 7(2) of the Legitimation (Scotland) Act 1968 demonstrated a corresponding policy for Scottish dispositions.

6. Lord Slynn of Hadley disagreed with the majority’s first ground. He considered that legitimacy should be tested under the law in force when the bequest vested. He nevertheless agreed that the limitation attached to the English legitimation could not be ignored. He therefore concurred in allowing the appeal.

7. The parties’ costs were ordered, by agreement, to be paid from the trust estate on an agent-and-client basis.

1. House of Lords: The appeal was allowed unanimously. The Inner House interlocutor was recalled, and both questions in the special case were answered in the negative: [1993] UKHL 13.

2. Extra Division of the Inner House of the Court of Session: Lords Allanbridge, Cullen and Brand answered both questions affirmatively on 25 October 1991: 1992 S.C. 48.