Jonathan Ewan Marcus v Edward Quintin Marcus

On 29 November 2003 Stuart Marcus created as settlor the SN Marcus Settlement (“the Settlement”), which is a discretionary trust in favour of a class of beneficiaries that includes “the children and remoter issue of the Settlor” and their spouses. The Settlement was a tax mitigation arrangement in what their advisers at the time described as a ‘Son of Melville’ scheme (Footnote: ¹) using discretionary trusts to postpone the payment of CGT. Stuart Marcus’ wife Patricia created a similar settlement, the PEJ Marcus Settlement, at the same time.

Stuart and Patricia Marcus were married on 29 September 1973. Edward Marcus (who is the defendant) was born on 11 March 1978 and Jonathan Marcus (who is the claimant) was born on 23 December 1981. Stuart Marcus died in 2020. Throughout the trial the parties and their parents were referred to using their given names and I will adopt the same approach in this judgment.

Edward and Jonathan were brought up by Stuart and Patricia as brothers and believing they were brothers. There is no doubt that they are both Patricia’s children. However, Jonathan seeks to establish that Stuart was not Edward’s father and, if he is right about that, he says, on a proper construction of the Settlement, Edward falls outside the class of beneficiaries who may benefit. The same point does not arise under the PEJ Marcus Settlement because Patricia is Edward’s mother.

Patricia told Edward for the first time in March 2010, when he was aged 32, that his true father was Sydney Glossop who was a partner in a law firm in Norwich. Stuart never knew that his wife believed Sydney Glossop was Edward’s father and he created the Settlement in 2003 believing that he was Edward’s and Jonathan’s father.

This claim was issued on 3 July 2023, some seven weeks after Jonathan found out about his mother’s claim about Mr Glossop being Edward’s father. In a prior claim brought by Edward in 2021, Edward sought Jonathan’s removal as a trustee of the two settlements. Jonathan defended that claim and Patricia made two witness statements in the removal proceedings that were relied upon by Jonathan in which she referred to Edward and Jonathan as “our sons”. She has now provided witness evidence in this claim saying that Edward was Mr Glossop’s son.

On 10 March 2022, after a 1½ day hearing, Master Pester made an order that the trustees of the Settlement, Edward, Jonathan and Timothy Addinell who was a long-standing professional trustee, should resign in favour of independent trustees appointed in accordance with a process prescribed in the order. Although it is not directly relevant to this claim, Edward says that Jonathan has delayed the implementation of the order and the appointment has not yet been finalised. Indeed, it was at one time part of the relief sought in this claim that Edward should be removed as a trustee of the Settlement. Jonathan has also issued an application to set aside Master Pester’s order. However, save as a matter of context, the 2021 removal proceedings now have only very limited bearing on the issues in this claim.

The issues for the court to resolve in this claim were reduced to eight at the outset of the trial. They have been defined by the parties in the following way:

Is the court satisfied on the balance of probabilities that Edward Marcus is not

If so satisfied, should the court make the declaration sought by Jonathan in

Does the word ‘children’ in the Settlement include stepchildren?

Was the 2004 Deed of Appointment executed on the basis that Edward was

Was there a convention which ‘crossed the line’ between Edward and

Did Jonathan make the representations alleged in Edward’s Amended Defence

Was the effect of the Deed of Appointment dated 5 March 2004 to add

If the effect of that Deed was not to add Edward to the beneficial class, then

Her statement exhibits an e-mail exchange with Edward in 2010. The title to the emails is “John Le Mesurier” because Edward remarked that the photograph he had found on the internet of Mr Glossop suggested he was “the spitting image of John Le Mesurier”. The exchange is significant because Patricia replies: “I cannot stop thinking of him”.

The exchange suggests that by 15 March 2010 they had both been to see Mr Glossop following which Edward wrote to Patricia:

“Thanks for introducing me to him. Its all been a bit of a shock. [sic] You will have to let me know when we can make another trip over. I have spent hours on the internet looking into this and it is amazing how many people are in the same position. I suppose it must be difficult for you as well.”

Patricia replied the same day saying:

“Had a conversation today – it was wonderful. Thank you for being so kind and understanding. I still have butterflies even now after all these years. We will make arrangements to go again. He is so happy.”

It appears that Patricia had spoken to Mr Glossop after the visit and her message suggests that Patricia was still strongly affected by Mr Glossop. “He is so happy” could refer to Mr Glossop’s pleasure at being in contact with Edward or to pleasure at re-connecting with Patricia, or both.

Patricia’s second statement is dated 18 June 2024. When she made it she had not seen Edward’s statement dated 19 June 2024 in which he deals with parentage in detail. Patricia provides more information about her relationship with Mr Glossop and her announcement to Edward in 2010.

Patricia says in her statement:

“8.

Prior to my marriage I had had a relationship with Sydney Glossop, who was a solicitor in Norwich. I met Sydney in the 1960s when I was working in a solicitor's office. I was a legal secretary from the age of 17. We used to visit the same cafe in London Street Norwich, which was close to our respective offices where we worked, and became friends first before we started arranging to meet up and a physical relationship began. Sydney was 54 and married when I met him, and I was in my 20s.

EDWARD'S PATERNITY

9.

After my marriage Sydney made a nuisance of himself and rang me up constantly. Stuart was always on the road as a sales representative. In 1977 he went away for 3 weeks, as mentioned in my previous statement. Sydney rang me during this period, and I agreed to meet him. It was at this meeting that Edward was conceived - I know this because as Stuart had been away, he could not have been the father. Other than this one-off encounter, I did not see Sydney again after this meeting. Sydney continued to try and contact me, however I stopped this.

10.

Other than that encounter, I had absolutely no relationship with any man other than my husband. Accordingly, I am absolutely certain that Jonathan is Stuart's son.

[passage omitted]

11.

I told Stuart that I was pregnant when I got the pregnancy test results. I eventually told Sydney but not for a long time afterwards. Sydney had no reaction to the news and was not interested in having any further relationship with the child (Edward).

12.

I registered Edward's birth on 3 April 1978 in Norwich. I cannot remember if Stuart was with me or not. However he was present at Edward's birth. There was nothing I could do but put Stuart as Edward's father on the birth certificate. I knew that Stuart absolutely adored me, and I could not hurt him in that way. I also knew that Sydney was married and did not want any relationship with Edward.”

Her statement goes on to describe again the occasion in 2010 when she told Edward about Mr Glossop and their visit to him. She concludes by saying:

“19.

After the meeting with Sydney, he asked me not to meet him again. I think he was frightened that Edward was going to get involved with his Will when he died. Neither Edward nor I ever saw Sydney again.

20.

Edward and I only spoke about Sydney twice after the meeting, once in a brief email exchange where Edward said that Sydney looked like John Le Mesurier and once when I told Edward that he had a bad temper 'just like Sydney'.”

Patricia’s written evidence is not entirely consistent about the extent to which she was in contact with Mr Glossop after the occasion she identifies as the date of Edward’s conception. She says she did not see Mr Glossop from that point onwards although he made efforts to stay in contact with her and she told Mr Glossop “a long time afterwards” that Edward was his son. She is vague about how she told Mr Glossop about Edward.

Her oral evidence about the extent to which she maintained contact with Mr Glossop after 1977 was also muddled. She accepted that there was some contact and that Mr Glossop visited the house in Taverham after Jonathan was born. Her recollection about detailed points relating to the trusts and the dates of some events was unimpressive. On occasions she would not accept a point that was obviously correct, such as refusing to accept Jonathan had sent an email from her account and at one point maintaining she did not treat Edward and Jonathan equally.

She was however adamant and consistent that she did not have sex with Mr Glossop after the one occasion she describes in her written evidence and that Mr Glossop is Edward’s father.

Edward’s second statement, which is responsive to Patricia’s first statement, provides a lengthy summary of his recollection of his mother’s revelation in 2010 about her relationship with Mr Glossop. He recalls her telling him a good deal about the state of her marriage with Stuart, that from her point of view it was an unhappy marriage and that Mr Glossop was her true love. Critically he says she told him that she was still seeing Mr Glossop in 1982 after the family moved to Norwich and after Jonathan was born. He also recalls her saying that she did not want Stuart to have any doubts about being Edward’s father so she was always careful to ensure that she maintained a sexual relationship with both Stuart and Mr Glossop.

His recollection of the visit to Mr Glossop records that he did not acknowledge Edward as his son and instead Mr Glossop was very happy to see Patricia. They behaved in a way that Edward says was “sickening”, that Patricia hugged Mr Glossop and said to Edward that “this is what true love is”.

There are two further important elements that arise from Edward’s evidence. First, he says that his mother told him during a conversation in the car park of Waitrose in Swaffham later in 2010 that it was a mistake telling Edward about her affair with Mr Glossop and that Stuart is his biological father. He describes her as being very certain about the position and said if Edward told Stuart about Mr Glossop she would deny the relationship. Secondly, Edward says he was told by Patricia that the relationship with Mr Glossop continued until after Jonathan was born, that Mr Glossop was able to visit her more discreetly before the move from Yewtree Farm to 2 Tusser Road in Taverham. Edward could recall as a child an old man with white hair coming to the house in Taverham. He provides other detail from his recollection of that time about visits by this man and that he was the same man who visited when Stuart was away. He says Patricia explained the visit as a visit by “Casey” who sold insurance. Eventually he says Patricia told this man to stop visiting. He says that in 2010 Patricia accepted that “Casey” was in fact Mr Glossop.

There appears to be no dispute that the family lived at Yewtree Farm in Foulden up to 1982 or 1983. Jonathan was born on 23 December 1981. The family moved from Yewtree Farm to 2 Tusser Road Taverham. Edward’s evidence is that Patricia told him her relationship with Mr Glossop continued until after the move to Taverham and he claims to have a recollection (aged about 4 or 5) of an old man with white hair coming to the house in Taverham and this was the same man who visited the house at Foulden when Stuart was away. This would have been when Edward was aged about 4. Edward says:

“I remember him visiting on a summer afternoon and that he played with our dog, Charcoal, a black labrador cross breed. Our mother told me his name was Casey and that he sold insurance. Our mother didn’t want to draw attention from the neighbours, so she told Mr Glossop to stop visiting us. She told me that if I ever saw him to tell her so that she could report him to the police. She told me not to speak to him. This all happened after Jonathan was born.”

He goes on to say that Patricia confirmed to him in 2010 that the man he could recall coming to the house was Mr Glossop:

“She referred to a particular visit which I remembered when Mr Glossop came to the window of the house. Jonathan and I ran and jumped on the sofa by the window and our mother remembered me saying to Mr Glossop “who are you?” she said she found this funny as I was quite rude in the way that I said it.”

It was put to Patricia that Edward could recall another occasion when Mr Glossop visited. Stuart returned to the house and Mr Glossop had to clamber out the window to escape. She said this did not happen.

Jonathan’s evidence on the issue of paternity is much less central than that of Patricia and Edward. Jonathan has made three statements. In his first statement, made at the time the claim was issued he says that he was only told on 15 May 2023 by Patricia that Stuart was not Edward’s father. It follows that although Patricia provided two witness statements in the trustee removal proceedings, she had not told Jonathan about Edward’s parentage until after that claim was concluded. It is of note that in his first statement, and this was repeated in his second statement, he expressed a willingness to provide a DNA sample for testing. It is clear that he was convinced by what his mother told him because this claim is based upon the premise that he is Stuart’s biological son and he does not share a biological father with Edward.

Jonathan’s third statement provides more detail about the occasion when Patricia told him about Sydney Glossop. Jonathan gave evidence in a helpful and clear way. There is simply no basis to doubt his evidence that he found out about Sydney Glossop in May 2023. Had he known that Edward is or may not be a full sibling he had every incentive to raise the issues in the claim at a much earlier stage. I therefore accept his evidence.

Jonathan’s evidence about May 2023 was challenged on the basis that Patricia did not speak to him about Edward’s parentage but rather Jonathan discovered the position himself because he has access to Patricia’s computer and her email address. This assertion was part of Edward’s case that Jonathan exercises “sinister control” over his mother. There is however no evidence of substance to show that Jonathan was able to access his mother’s computer at will or that had he done so he would have been able to discover information about Edward’s paternity. The only email exchange on the subject dates from March 2010 under the heading “John le Mesurier” and it is fanciful to think that Jonathan scrolling through his mother’s email account could have (a) alighted on this email exchange and (b) realised its significance without being given its context and an explanation for the heading.

Mr Mills submitted that the court should not place reliance upon Patricia’s evidence. He points to the number of occasions she said she could not recall instead of answering a question and to obvious errors. He relies upon the fact that Patricia was not truthful about her relationship with Mr Glossop over decades and submitted that this degree of deception corrupts memories. Furthermore, that her recollection of events in 1977 and beyond is unsupported by any documents. She accepted the relationship with Mr Glossop was a passionate one and it was suggested to her that her recollection of 1977 is false because it is affected by wish fulfilment. She wants Edward to be Mr Glossop’s son.

I accept that Patricia was an imperfect witness and that she was wrong about some matters. There is ambiguity in her second statement about contact with Mr Glossop after what she describes as a one-off liaison with him in 1977. She says she did not see Mr Glossop after this occasion but shortly afterwards (paragraph 11) she did not tell Mr Glossop about her being pregnant (or possibly having had his child) “for a long time afterwards”. She is unspecific about how they were in contact.

However, I was left with no doubt that Patricia was an honest witness giving evidence about very personal and vexing issues concerning her family life. It is unsurprising that she could not recall matters of detail about peripheral issues given her age. The central factual issue concerns whether it is possible that Stuart is Edward’s father. Is Patricia’s evidence reliable in saying that she had sexual intercourse with Mr Glossop in 1977 at a time she was not having intercourse with Stuart and did not have sexual intercourse with Mr Glossop after the one occasion in 1977? If her evidence is accepted on these two points, Mr Glossop was not Jonathan’s father. Did Patricia maintain that she had no further sexual relations with Mr Glossop after 1977 because it is true or because she has convinced herself that it is true?

There are helpful pointers in the evidence including that:

The evidence contains a number of suggestions about bodily, health and behavioural similarities and dissimilarities between Stuart and the parties to this claim. I do not consider they are reliable indicators of any substance.

I find that Stuart was not Edward’s biological father.

What is the proper construction of the words “the children and remoter issue of the Settlor now in being or born hereafter” and in particular the meaning of “children” as it is used in the Settlement?

The principles the court should apply were summarised by Carr LJ (as she then was) in ABC Electrification Ltd v Network Rail Infrastructure Ltd [2020] EWCA Civ 1645 at [17-19]:

“17.

The well-known general principles of contractual construction are to be found in a series of recent cases, including Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2011] 1 WLR 2900; Arnold v Britton and others [2015] UKSC 36; [2015] AC 1619 and Wood v Capita Insurance Services Ltd [2017] UKSC 24; [2017] AC 1173.

18.

A simple distillation, so far as material for present purposes, can be set out uncontroversially as follows:

i)

When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. It does so by focussing on the meaning of the relevant words in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the contract, (iii) the overall purpose of the clause and the contract, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions;

ii)

The reliance placed in some cases on commercial common sense and surrounding circumstances should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision;

iii)

When it comes to considering the centrally relevant words to be interpreted, the clearer the natural meaning, the more difficult it is to justify departing from it. The less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning;

iv)

Commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made;

v)

While commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. Accordingly, when interpreting a contract a judge should avoid re-writing it in an attempt to assist an unwise party or to penalise an astute party;

vi)

When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time the contract was made, and which were known or reasonably available to both parties.

19.

Thus the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. The court’s task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. This is not a literalist exercise; the court must consider the contract as a whole and, depending on the nature, formality, and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. The interpretative exercise is a unitary one involving an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences investigated.”

The Settlement is a unilateral document which involved no negotiation between parties. Nevertheless, it is clear from Lord Neuberger’s judgment in Marley v Rawlings [2014] UKSC 2 at [17-23] that a document such as a will has to be construed applying the same principles as those summarised in ABC Electrification Ltd v Network Rail Infrastructure Ltd. The same approach should be applied when construing a settlement. However, Lord Neuberger pointed out at [21], having emphasised in paragraph [20] the importance of context, that the unilateral nature of a will is one of the contextual circumstances which has to be borne in mind when interpreting the document. The test to be applied by the court is essentially the same as for a bilateral document with one difference namely that “settlor” is substituted for “parties” so that the court is required to consider what a reasonable person, having all the background knowledge which would have been available to the settlor at the date of execution, would have understood the words used by the settlor to mean.

Lord Neuberger referred with approval at [23] to the test derived from Boyes v Cook (1880) 14 Ch D 53 at 56 that when interpreting a will the court should place itself in the “testator’s armchair”, that test being consistent with the approach to interpretation by reference to the factual context. The armchair approach does not provide a different test to that derived from the authorities summarised in ABC Electrification Ltd v Network Rail Infrastructure Ltd but it provides a useful reminder that in the case of a unilateral document, such as a settlement, the focus is upon one person’s intentions, objectively ascertained.

Mr Braithwaite places particular reliance on the principles that are set out in paragraphs 18 (ii), (iii) and (iv) of Carr LJ’s judgment. He emphasizes the language that is used in the Settlement and the principle that the clearer the natural meaning the more difficult it is to justify departing from it. The Settlement does not name Edward and/or Jonathan as beneficiaries, although it could have done. The court must start with the language used by the settlor. Drafting by a class of beneficiaries, rather than by naming them, is a common approach. It reserves the possibility that there may be other persons who fall into the class who were not known about when the settlement was created.

Mr Braithwaite also emphasises the fact that a contract has worked out badly is not a reason to depart from the natural meaning of the language used. At risk of stating the obvious here, it is not possible to have regard to the conclusion I have reached about Edward’s parentage because it was not a fact or circumstance known to Stuart in 2003. The relevant context points clearly to Stuart believing in 2003 that both Edward and Jonathan were his biological children.

Mr Braithwaite submits that ‘children’ is a term of art and does not include what can loosely be called stepchildren such as children who have been treated as being one of the settlor’s children but are not in fact his biological children.

Terms of art are discussed in Section 8 of Chapter 5 in Sir Kim Lewison’s Interpretation of Contracts 8^th ed. The principle is stated in the following way:

“Where a document contains a legal term of art the court should give it its technical meaning in law, unless there is something in the context to displace the presumption that it was intended to carry its technical meaning.”

In Sydall v Castings Ltd [1967] 1 QB 302 the Court of Appeal was required to consider the meaning of “descendant” in a company’s group life assurance scheme. Diplock LJ sets out in his judgment an explanation for the benefits provided by legal terms of art, including the promotion of certainty in judicial decision making. He went to say at page 314F to 315A:

“The lexicon of terms of art is to be found in the decided cases and in the textbooks consulted by legal practitioners. This does not entail (I use the verb in its popular sense and not as a term of art) that the meaning of words and phrases which have become terms of art is incapable of evolution if the word or phrase is used in relation to circumstances of a kind which did not exist when its meaning as a term of art first became fixed. But the evolution of the meaning of a term of art is less rapid and less frequent than any changes in the meaning of words and phrases in popular speech, for the legal draftsman, knowing the previous meaning of the " term of art," can, if he wishes, extend or restrict that meaning by adding to it other qualifying words and phrases.”

Later in his judgment he addressed examples of terms of art in wills and settlements and said at page 316D to 317A

“Among the commonest forms of documents which are drafted and construed by professional lawyers are wills and settlements which create in favour of persons indicated by the document rights and liabilities in respect of property passing upon the death of a deceased; and among the commonest classes of persons in favour of whom such rights are created are those who bore some family relationship to the deceased. "Descendant" is but one of a number of nouns which have been used in countless legal documents for a century or more to identify persons between whom and the deceased a particular family relationship existed. Like "son," "daughter," "children," "issue," "father" and " ancestor," it is one of those nouns denoting family relationship which have become terms of art. In the case of many of these other nouns, it has been laid down in well-known decisions of the courts that, unless there is something in the context of the document or in the surrounding circumstances to indicate the contrary, their meaning does not include persons whose only claim to the described relationship to or through a male is based upon birth outside the bonds of wedlock. This rule of construction has been so uniformly applied to different nouns denoting family relationships that it has in my view become a general rule of construction applicable to all nouns within that class which have become terms of art. It has for many years been so treated by successive authors of the standard textbooks used by professional lawyers.” [my emphasis]

Mr Mills submitted that ‘children’ is not a term of art or if historically it has been treated as such the time has come to look afresh at the term. He is right to point out that the authorities on the construction of contracts referred to in ABC Electrification Ltd v Network Rail Infrastructure Ltd do not refer to presumptions; neither does Carr LJ’s summary of the principles of construction. Mr Mills may well be right that the identification of a word or phrase as a term of art in the context of wills and settlements is a less useful approach than it was at one time.

The authors of Lewin on Trusts 20^th ed. paragraph 7-20 say:

“… at common law in a disposition of property the expression “children” is construed prima facie as meaning legitimate children. And a child at common law child is legitimate if:

(1)

the child is born or conceived in wedlock;

(2)

the child, if not born or conceived in wedlock, is legitimate by the law of the domicile of each of his parents at the time of his birth; or

(3)

the child’s parents marry after the birth of the child and under the law of the father’s domicile at the time of his birth and at the time of the subsequent marriage of his parents, the child is legitimated by that marriage.

This common principle of construction applied in relation to all expressions denoting family relationships. In order to displace the common-law rule, it was, in general, necessary to show either that it was apparent from the language used by the settlor or testator that a gift in favour of children was not intended to be for, or to be confined to, legitimate children, or alternatively that it was impossible from the surrounding circumstances for a legitimate child to take.”

This passage was cited with approval by Chief Master Shuman in Goodrich v AB [2022] EWHC 81 (Ch) although that case involved multiple issues of construction arising from an Employee Benefit Trust. The construction of the word “children” as part of a class of beneficiaries in an EBT, which necessarily would need to be capable of application to a wide range of persons who were unascertained when the EBT came into being, and to be applied over the lifetime of the EBT, may not be on all fours with the same word used in a family settlement under which there is a single source for children, namely the settlor.

There is another helpful passage in Lewin at paragraph 7-023:

“Relatives who are not children strictly so called

The expression “children” in a trust for the children of a given person does not at

common law include that person’s grandchildren or stepchildren or any persons

under a wider understanding of children found in family law (such as a “child of

the family”), in the absence of an express provision to that effect or an extended

meaning arising from the context. This principle has not been affected by statute

in relation to the interpretation of trusts for children.”

The authority cited in Lewin for the proposition that ‘children’ does not include stepchildren is Re Lewis’s Will Trusts, Phillips v Bowkett [1937] 1 All ER 556. I merely observe that for a proposition of such importance it is a decision of limited weight given the lack of reasoning in the judgment. Clauson J was required to construe a will trust under which the trustees were required to divide the fund in equal shares “between the children of the said Evan Jones and Margaret Jones.” Evan Jones had a child by an earlier marriage. The judge construed the clause as meaning people who were able to say ‘Evan Jones and Margaret Jones were or are our parents and it would be an unnatural use of language to construe the words used as meaning the child of one of them. The child by the previous marriage was therefore excluded because it was a child of only one of them.

It seems to me that a debate about whether ‘children’ is a term of art and, if so, should it remain one is of very limited assistance to this court. The starting point now is to apply the natural and ordinary meaning of the words used and the clearer the words used the more difficult it is to justify departure from the natural meaning. ‘Child’ and ‘children’ are terms which are commonly used and will normally have the meaning ascribed to them in the passage from Lewin at 7-023 set out above. ‘Children’ does not include stepchildren unless the context indicates otherwise because it has a natural meaning. It would not naturally include someone who is not biologically related to a settlor. If an extended meaning was intended, it would have been possible to provide additional words to make that clear.

I am not convinced that the concept of legal terms of art has a useful place in the current approach to construction, unless a term of art is synonymous with “natural meaning”, but I am convinced that this judgment is not the occasion, based upon the authorities cited to me by Mr Mills, to declare that children no longer has the standard meaning given to it in Lewin and elsewhere.

I will turn now to consider whether the context provided by the Settlement should displace the natural meaning of ‘children’.

Relevant background information that is admissible includes the following:

The words and phrases used in the Settlement are of limited assistance. There are three contextual points that can be made:

Mr Braithwaite submitted that it is not open to the court to adopt a wide construction and include a non-biological child within “children” and that such a construction is based upon knowledge of the outcome if the definition was applied using its normal meaning. Adopting a wider meaning, he submits, takes account of a mis-prediction about the effect of the clause in light of subsequent knowledge. It is not relevant to construction to apply knowledge he did not have.

I accept this proposition as far as it goes. It is not permissible to ask what Stuart might have thought had he known that Edward was not his child. The test for the court is to take the natural meaning of children and to consider what a reasonable person in possession of the facts and circumstances known or assumed by the parties at the time that the document was executed, and appreciating the overall purpose of the clause and the contract would understand Stuart to have meant by the word. Put another way are the facts and circumstances sufficient to lead the court to move away from the natural meaning of children?

The reasonable person who is undertaking this exercise knows about the family context and the purposes of creating the Settlement. It is known that Stuart was unlikely to have any further children. He had created a successful business that he had founded. He had a family with two sons who had reached their early twenties. There was no reason why Stuart should have wanted to have treated differently or to have benefitted any child or children other than Edward and Jonathan.

The re-amended defence puts three alternatives before the court – “stepchild”, “child of the family” and “Edward and Jonathan”. The role of the court applying an objective test is not to re-draft the Settlement, as might be the case with rectification, but to establish the meaning the words used. Stepchild is not a term of art and has no settled common law meaning and “child of the family” is a concept derived from statute. I do not find it is helpful when looking for the meaning of ‘children’ to settle upon a synonym with uncertain meaning as a substitute.

I consider that the surrounding circumstances point overwhelmingly in favour of a wider meaning than biological child being adopted. A reasonable person in knowledge of the relevant facts would readily conclude that when using “children” Stuart intended this word to be understood as meaning Edward and Jonathan; and not “Edward and Jonathan provided they are in fact my biological sons.” The surrounding circumstances that resonate powerfully when looking at the Settlement through objective eyes are Stuart and Patricia’s age, the apparent stability of their marriage, which had lasted for thirty years, and the family unit, the way in which Edward and Jonathan were treated within the family unit and the purpose for which the Settlement was created. Crucially there was no reason to consider that Stuart might have intended to treat Edward and Jonathan unequally. The inequality that would arise between the two settlements by applying the natural meaning of children is stark. It is right, of course, that in time honoured fashion the person who drafted the settlement provided for a class that left room for expansion rather than using the more direct choice of naming Edward and Jonathan. That drafting decision cannot be ignored. However, it is displaced by the context for the reasons I have given.

In reaching this conclusion I have not relied upon contextual matters that can be found in the Mills & Reeve file such as the references to “your sons”, “your two sons”, “the boys” which were clear references to both Edward and Jonathan. I was invited by Mr Mills to take them into account as matters of context. However, it seems to me that they are better seen as a record of Stuart’s subjective intentions and as such they are inadmissible.

In light of my decision about issue 3 it is unnecessary for me to consider issues 4 to 8.

Upon the handing down of the judgment I will consider the form of order that should result from the finding about Edward’s paternity and the proper construction of the Settlement.