The Case of: Marcus v Marcus [2024] EWHC 2086

In the case of Marcus v Marcus [2024] EWHC 2086, the High Court was asked to consider the extent to which a stepchild may be able to benefit from a family trust. This case also involved questions surrounding paternity and discussed the principles surrounding the construction of wills.

In 2003, Stuart Marcus settled a family trust as part of a tax‑efficient arrangement involving shares in the family company in the toy/game industry. His two sons, Edward and Jonathan, both had active involvement with running this family business. The discretionary beneficiaries under the trust were defined as “the children and remoter issue of the settlor” and their spouses.

Stuart raised his two sons, Edward and Jonathan, with his wife, Patricia. Unbeknownst to Stuart during his lifetime, Edward was not his biological child and instead was the result of a brief affair in the 1970s between Patricia and Sydney Glossop, a partner in a Norwich law firm.

Patricia disclosed the affair to Edward himself in 2010; however, at the time of his death in 2020, Stuart was unaware of the truth surrounding Edward’s parentage. In 2023, amid a breakdown in the brothers’ relationship, Patricia then informed Jonathan of this news. Shortly afterwards, Jonathan issued a claim asking the court to determine two issues:

• Is Edward, on the balance of probabilities, Stuart’s biological son?
• Did the word “children” in the trust deed include stepchildren,  i.e. does Edward have standing to benefit from the trust?

In terms of the second question, Jonathan argued in favour of a narrow, purely biological definition, suggesting that Stuart’s ignorance of Edward’s true parentage meant that he could not have intended to benefit Edward upon his death. Edward, however, argued that the term “children” should be interpreted in light of Stuart’s conduct and intention, namely that he had always treated both of them equally as his sons and believed that Edward was his biological son.

The court applied the strict test surrounding the construction of wills, requiring them 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. In the legal context, “children” does not typically include stepchildren. However, the court was of the view that the term “children” in these particular set of facts must be construed in a much wider sense, determining that by utilising the term, Stuart had intended to include both Jonathan and Edward.

In light of the increasing complexity of modern family structures, the narrow construction of terms such as “children” brings risk to those seeking to leave their wealth to family members upon their death, as their assets may not always go where intended. It is clear that it may be safer to select your beneficiaries by name as opposed to adopting terms such as child, children, cousins, family members, etc, in order to avoid the risk of your final wishes being misconstrued and formal litigation subsequently being entered into.

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