Modern families, modern trusts: judicial responses to changing social norms

With thanks to Charlie Broad, paralegal, for his assistance with this article. 

Questions of trust law often require courts to reconcile traditional legal language with modern social realities. Marcus v Marcus [2025] EWHC 1695 (Marcus v Marcus) exemplifies this: the court took a flexible, contract-based approach to determine whether 'children' could include a non-biological child. This flexibility reflects a broader trend toward ensuring trusts remain responsive to societal change. 

We see similar thinking in Jersey, where the courts have shown a readiness to depart from strict settlor wishes in favour of inclusivity and harmony among beneficiaries. As observed in In the Representation of Zedra Trust Company (Suisse) SA re C and D Trusts (2023) (Zedra): “A dynastic trust is likely to have to provide for a number of generations and as the philosophy of the family changes it is appropriate for consideration to be given as to whether it reflects that philosophy and, if it does not, whether any changes are appropriate.”

This statement captures the essence of the challenge: trusts are not static instruments but living structures that need to evolve with changing family values and cultural norms. Against this backdrop, the following discussion examines three recent cases – Marcus v Marcus, In the Representation of Y Trust and Z Trust (Y and Z), and Zedra – to explore how courts are managing the balance between settlor intention, beneficiary interests, and public policy.

Marcus v Marcus [2025] EWHC 1695

Stuart Marcus, a successful businessman, was married to Patricia Marcus. They had two children, Edward and Jonathan. Stuart had established a discretionary trust in 2003 for the benefit of his “children and remoter issue.” The trust formed part of a wider estate and tax planning strategy involving family business assets.

Following Stuart's death, it emerged that Edward was most likely not Stuart's biological son. Patricia had revealed this to Edward during Stuart's lifetime but, crucially, had never told Stuart, who died believing that Edward was his own son. Following the disclosure of this news to Jonathan, Jonathan commenced proceedings against Edward, challenging his status as a beneficiary under the 2003 trust.

The case was first heard in 2023 in front of Master Marsh (sitting in retirement). The questions for the court here were fundamentally whether (i) Edward was or was not Stuart's biological son and, if not, (ii) whether he would still fall within the definition of 'children' in the trust deed. The court found that, in answer to (i), Edward was not Stuart's biological son. The Master then turned to the consideration of (ii). A contractual approach was taken, using an objective test to ascertain the intention of the parties based on the natural and ordinary meaning of the words. On this basis, the Master decided that 'children' could apply to a wider meaning than biological child.

Jonathan appealed this decision, and his appeal was dismissed in July 2025. Jonathan argued that the word ‘children’ was a term of art (namely a term which, over time, had acquired a meaning through successive rulings by the court), which excluded nonblood relations. The Judge was "not convinced" that the word 'children' should be viewed as a term of art "in the modern social environment" but did not feel in a position to decide that, nor indeed that it was necessary to do so. Even if the word did exclude "nonblood related apparent juniors" he found that it was capable of giving way to a wider meaning if the circumstances required it: "The same is true of a word with a natural meaning – that meaning can give way to context." On this basis, the correct starting point was the natural meaning of the words used, with the "all important question" being "whether in the present case there is … something … to indicate another construction." He found that Edward is one of Stuart’s children on the true construction of the settlement.  

By finding a way to make established legal language flex in response to societal shifts, the Master took a modern judicial approach which ensures that the law remains responsive and inclusive. 

Settlor intentions in Jersey

We have seen the court take a similarly modern judicial approach in two cases in Jersey in the last few years, most recently Zedra which quotes extensively from the 2017 case of Representation of Y Trust and Z Trust ('Y and Z'). Both of these cases consider the question of settlor intention and raise interesting public policy considerations. 

The 2017 case of Y and Z concerned an application under Article 47 of the Trusts (Jersey) Law 1984 (Jersey Trusts Law), which allows the court to approve a trust variation on behalf of minor unborn and unascertained beneficiaries (among others), provided this variation is for their benefit.

Y and Z were two major settlements forming part of a large group of settlements (the General Family Trusts), all of which were settled directly by W (the Settlor), or by trustees of trusts which he had previously established. The value of these settlements was described by the court as "very substantial indeed", and the Settlor himself (by now deceased) had been married several times and had a large family.

The trust provisions are complex. The relevant provisions for this application were those relating to the definition of 'issue' and 'descendants' found in the Y and Z trusts. Both the Y and Z Trusts defined beneficiaries narrowly, limiting them to the Settlor’s 'issue' – a term expressly restricted to children born of heterosexual relationships (married or long-term), adopted children, and those born via artificial insemination with a biological link to the Settlor. Neither trust recognised children born into same-sex relationships or those outside the specified parameters, and the Z Trust went further by requiring, in certain circumstances, proof of bloodline and a requirement for 'normal educational and social behaviour' (which was conspicuously undefined).

These rigid definitions, reflecting the Settlor’s strong personal views on family structure, ultimately led to administrative complications and the exclusion of individuals who had been treated as family in practice, including some regarded by the Settlor as grandchildren.

An application was therefore made to the court for the amendment of the trust deeds to change the definition of 'issue' and 'descendants', thereby bringing the provisions into line with the other General Family Trusts, which had previously been modernised by appointments in 2014 and 2016. It was noted by the court that the decision to make the application (which departed from the wishes of the Settlor) had been made after extensive consultation, and that the family had even consulted a psychoanalyst to advise on the best approach. Ultimately, it was said that leaving the present arrangements in place would only leave a basis for "unhappiness and dissension" [16], and that the pursuit of family harmony was one of the major factors behind the application.

The court acknowledged that the decision to make the application had been reached after much discussion, and that the application was unlikely to be contested. As a result of this, an amicus curiae was therefore appointed to assist the court with arguments on the following two matters:

1. The degree to which a settlor's intentions should be key to the court's determination of the application; and
2. The extent to which the trust deed should or should not be upheld by the court in 2017, from a public policy perspective.

Regarding the first point, the court was quick to determine that, whilst settlor wishes are relevant, the key is the extent to which they are relevant in circumstances where the proposed variation is beneficial to those for whom the court is concerned:

"Article 47(1) is concerned with those who have beneficial interests under the trust, and not with those who settled the interests in the first place. On a proper construction of the Article, it appears to us that it is wrong in principle to have regard to the intentions of a settlor who is not or is no longer a beneficiary, except to the extent that those intentions bear upon the interests of the beneficiaries.”

As a result, it was considered immaterial that the proposed variation in this case was contrary to the wishes of the settlor. In reaching this conclusion, the court relied on English case law concerning the Variation of Trusts Act 1958.

The second point provoked more discussion and centred around the competing public policy points of (i) the desirability of Jersey as a jurisdiction for settlors and (ii) the obligations Jersey has from a Human Rights perspective. The court found as follows:

"We have no hesitation therefore in saying that the policy argument, that the financial services industry might be able to encourage trust business by indicating to putative settles that if they wanted to discriminate against those born out of wedlock or those of same-sex sexual orientation those wishes would be respected on an article 47 application, is outweighed by the policy statement of where this island currently stands in relation to such issues as is demonstrated by the legislation referred to above and the international treaties by which the island is bound.”

The Bailiff noted that the settlor had determined that the trusts were to be governed by the proper law of Jersey: "That involves consideration of the whole of our law. Historically, of course, the law of Jersey was inter alia against upholding the validity of a gift in favour of a concubine or a person born out of wedlock. No doubt that would also have extended to the product of the same sex union had such an outcome been possible centuries ago. Those rules of customary law applied because they met the requirements of the society which then existed. That is, however no longer the position in Jersey.” 

As a result, the court was content to allow the variation with their powers under Article 47, and the Deed was amended to expand the class of beneficiaries. Again, we see the powers of the court in harmony with societal shifts, to reach a modern outcome.  

In Representation of Zedra Trust Company (Suisse) SA re C and D Trusts (2023) (Zedra)

The guidance in Y and Z was heavily relied upon in the more recent Zedra case.

The case involved two discretionary trusts, C and D, which had their origins in a settlement from 1974. The beneficiaries of the original trusts were the Settlor's spouse, his three sons, and their male issue. The Settlor himself had died some time before. The specific trusts which were the subject of the application were established for the benefit of one of the Settlor's sons (Mr C), and his male living and remoter issue. At the time of the application, Mr C had one adult son and three adult daughters; his daughters were therefore excluded from benefit.

Unlike Y and Z, the trusts in Zedra gave the Trustees powers to vary the terms of the trusts, including the ability to add new beneficiaries or other classes of person. The issue was presented by the letters of wishes that the Settlor had originally executed; specifically, the first one stated that "my sons should not change the class of beneficiaries nor the ratio fixed". The Trustees intended on amending the Trust Deed to expand the class of beneficiaries to include the female line but were cautious in their approach due to the contrary wishes of the settlor. As a result, they applied to the court under Article 51 for a blessing of their decision, which they had identified as a momentous one.

In reaching their decision, the court accepted that to vary the trusts would go against the wishes of the settlor, but, as in Y and Z, they emphasised the importance of having regard to the views and wishes of the beneficiaries. The court also noted at [18] that the Representor, in seeking to make the changes, was addressing provisions of a "discriminatory nature". At this point, the court quoted extensively from Y and Z, and noted that the issues in Zedra were "remarkably similar" to those in that instance.

In coming to their decision, the court quoted from an affidavit filed by the Representor, who noted that, whilst the original settlement was "consistent with the Settlor's cultural heritage, it is not appropriate in the context of a modern-day multi-generational trust structure". The court accepted that to amend the trust was contrary to the wishes of the settlor, but agreed that the views he expressed were those of the "culture and values" of the 1970s, and that they were no longer reflective of the culture, values and lifestyle of the current beneficiaries.

The court's conclusion was that "to exclude the female line could well lead to family disharmony". The court therefore balanced the wishes of the beneficiaries with an informed approach to modern social values, and in so doing departed from the wishes of the settlor.

It is important to note that Zedra was more passive than Y and Z, as the court were only being asked to bless a decision which the trustees ultimately had the power to make, rather than being actively involved in the decision-making process as required in an Article 47 application. Nonetheless, this application provided the court with another opportunity to consider the important principles referred to in Y and Z and to confirm the court's continued forwards direction of travel.

These three cases show that, whether a matter of construction, variation or blessing a trustee decision, the court is showing an increasing willingness to review trusts and testamentary documents in a way that is more in keeping with modern society; even if this contradicts clear settlor intentions.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2026