Jonathan Ewan Marcus v Edward Quintin Marcus

In construing a settlement referring to the settlor’s “children”, the court starts with the ordinary meaning of the word, but that meaning may be displaced by the document’s context and surrounding circumstances. A person whom the settlor believed, treated and intended to benefit as his child may fall within the class even though the person is not his biological child. The use of a class-defining word does not prevent that conclusion. The question is whom the settlor was describing in the relevant real-world context, rather than whether he accurately predicted the legal effect of the words used. Construction is a question of law for the appellate court once the underlying evidence has been evaluated.

Stuart Marcus created a discretionary settlement for, among others, his “children and remoter issue”. He believed that Jonathan and Edward Marcus were both his biological sons and treated them equally. Edward was in fact fathered by another man, although Stuart did not know this when the settlement was executed.

Master Marsh held that “children” included both Jonathan and Edward and dismissed Jonathan’s claim for relief dependent on Edward’s exclusion. The appeal concerned whether the ordinary or presumed meaning of “children” required biological parentage, and whether the surrounding circumstances displaced that meaning.

1. Appeal dismissed. The construction of the settlement was a question of law. Although the Master had evaluated the evidence and made factual findings, the appellate court was entitled and obliged to decide the technical effect of those findings and the proper construction for itself.
2. The ordinary meaning of “children” would not, without more, include a person who was not the biological child of the relevant parent. Whether the expression was treated as a term of art or as an ordinary word, however, its meaning could yield to the context and surrounding circumstances: Siddall v Castings [1967] 1 QB 302.
3. The relevant circumstances showed that Stuart regarded Edward and Jonathan as his biological sons, treated them as equals and intended the settlement to operate on that basis. In Stuart’s real world, “children” accurately described both men. The same conclusion followed from the perspective of the trustees and any relevant objective observer. The fact that the word was capable of defining a changing class did not prevent it from including Edward.
4. The settlor’s mistaken belief about Edward’s biological parentage did not produce a different result. The question was whom Stuart intended to describe, not whether he had accurately predicted the effect of the word. The surrounding circumstances displaced any biological limitation.
5. The court differed from the Master only in preferring that “children” included Edward, rather than that it meant Jonathan and Edward to the exclusion of possible future or subsequently discovered children. That distinction did not affect the result. Edward was within the class of beneficiaries.

• High Court, Chancery Division: Master Marsh, sitting in retirement, held that “children” in the settlement included both Jonathan and Edward and dismissed Jonathan’s dependent claims: [2024] EWHC 2086 (Ch).
• High Court on appeal: Sir Anthony Mann dismissed the appeal and upheld the conclusion that Edward was within the class of beneficiaries: [2025] EWHC 1695 (Ch).