Should discriminatory wishes be honoured following a person’s death? 

If you make a trust to benefit others, either in your Will or during your lifetime, you expect the trustees to carry out the terms of the trust or follow your wishes.   However, the case of Representation of Zedra Trust Company (Suisse) SA re C and D Trusts [2023] JRC 213, shows that this assumption cannot be relied on if the effect would be to discriminate unfairly.

The background

In this case, the deceased made a letter of wishes in the 1970s stipulating that his trusts should exclusively benefit male members of his family, explicitly excluding any female family members, with a directive that this condition remain unaltered.

One of the male trustee’s sought court approval to vary the trusts to allow female members of the family to benefit under the trust. The trustee’s aim was to maintain harmony within the family, mitigate potential conflicts, and ensure that future generations of the family, regardless of gender, could benefit from the trusts.

The court’s decision

The court approved the trustee’s request, despite its deviation from the deceased’s expressed wishes. The court noted that the letter of wishes created by the deceased was not reflective of the culture or values of the current living beneficiaries or the philosophy of the family and its future generations.

Implications of the case

Although the case was decided on its facts, the courts are increasingly exercising discretion to ensure that wills and letters of wishes are not used as a means of continuing a set of beliefs or values that are considered to be discriminatory and outdated in today’s society.

This decision furthers the approach taken in the 2017 case of Y Trust and the Z Trust [2017] (1) JLR, where the court approved the variation of a trust to allow the children of unmarried or same-sex parents to benefit under the trust where they had been expressly excluded by the deceased.

Written by Megan Wood – Litigation Department.

If you have any questions in relation to this article or require advice in relation to the topics discussed, please contact Justine McCool at [email protected]