A recent High Court decision involving the Longleat estate highlights an emerging challenge in trust and probate law: applying historic trust instruments to modern family structures, particularly those created through assisted reproduction and surrogacy.
Although the case is rooted in aristocratic wealth, the legal principles are widely relevant to trustees, beneficiaries, and practitioners dealing with contentious probate and trust disputes.
Our Contentious Probate and Family Solicitors discuss how, at its core, this decision illustrates an increasing issue in trust litigation. There is often ambiguity in defining who qualifies as a beneficiary under outdated trust wording, leading to disputes.
Background to the Case
The Marquess and Marchioness of Bath have two sons. Their younger child, Henry, was born in 2016 via a US surrogacy arrangement following serious medical complications during the Marchioness’s first pregnancy.
Henry is the biological child of both parents. However, questions arose as to whether he fell within the definition of a beneficiary under longstanding family trusts associated with the Longleat estate.
The issue stemmed from trust provisions drafted using traditional legal terminology and pre-1970 common law concepts of family relationships. This raised uncertainty about whether Henry could qualify under terms such as children, issue, or descendants.
To manage this uncertainty, the trustees sought court approval for a protective approach. They preserved the ability to add Henry as a beneficiary in the future without exercising that power immediately. This was partly to avoid potential tax complications arising from US jurisdictional issues.
Mr. Justice Matthews approved the approach, noting that excluding Henry from potential benefit would be unfair and unfortunate.
Why the Case Matters for Trust and Probate Disputes
While fact-specific, the case reflects a broader and increasingly common problem in contentious probate. Historic trusts are being interpreted in a modern family context.
Many trusts still in force were drafted decades ago, long before developments such as:
- Assisted reproductive technologies, including IVF
- Surrogacy arrangements
- Donor conception
- Blended and non-traditional family structures
As a result, trusts often rely on terms such as:
- Issue
- Children of the marriage
- Legitimate children
- Descendants
These terms may appear straightforward, but modern family arrangements can create genuine legal uncertainty when applying them in practice.
Legal Parentage After Surrogacy in the UK
Under UK law, legal parentage following surrogacy does not automatically reflect biological reality. At birth, the surrogate is treated as the legal mother, regardless of genetic connection. If she is married, her spouse or civil partner may also be treated as the second legal parent.
The intended parents must apply for a parental order to become the child’s legal parents. Until that order is made, there can be a disconnect between legal parentage and the intentions of the parties.
This has significant implications in a trust and succession context. Many trust instruments depend on legal definitions of parentage or legitimacy rather than biological connection. Timing can also be critical. If a parental order has not yet been granted, questions may arise as to whether a child falls within a class of beneficiaries at a particular date.
The Risk of Trust and Probate Disputes
Uncertainty over beneficiary status is a well-recognised trigger for contentious probate disputes, particularly where substantial family wealth or dynastic trusts are involved.
In practice, disputes may involve:
- Interpretation and construction of trust documents
- Applications for declarations of entitlement
- Challenges to trustee decision-making
- Allegations of breach of trust
- Disputes between siblings or different family branches
These cases are often highly sensitive. They frequently combine legal interpretation with deeply personal issues around identity, legitimacy, and perceived fairness within families.
Although the Court in this case adopted a pragmatic and protective approach, outcomes in similar disputes will always depend on the precise wording of the trust and the surrounding facts.
The Difficult Position of Trustees
The case also highlights the practical and legal challenges faced by trustees administering older trusts.
Trustees must act strictly in accordance with the terms of the trust and in the best interests of the beneficiaries as a whole. However, ambiguity in drafting can place them in a difficult position with competing risks:
- Excluding a potential beneficiary may lead to future claims of unfairness
- Including a disputed beneficiary may prompt challenges from others
- Failing to resolve uncertainty may expose trustees to breach of trust allegations
In this case, the trustees mitigated risk by seeking court approval at an early stage. This is often the most prudent course in high-value or uncertain situations. Trustees, in particular, should seek early advice when there is any uncertainty, as taking the wrong step can expose them to personal liability.
This is often the most prudent route in high value or uncertain trust scenarios, allowing trustees to obtain judicial guidance before taking irreversible steps.
A Wider Trend in Trust Law
This decision reflects a wider and ongoing issue in private client law. The law of trusts has not always kept pace with modern developments in family formation.
Advances in assisted reproduction and the growth of international surrogacy arrangements have significantly changed how families are formed. Many existing trust instruments continue to rely on outdated assumptions about parentage and legitimacy.
As these arrangements become more common, disputes over the interpretation of familial terms in trusts are likely to increase.
For contentious probate practitioners, this represents a growing area of risk and litigation.
Practical Tips for Family and Private Client Practitioners
When advising on surrogacy and succession planning, a joined-up approach between family and private client teams is essential. Practitioners should:
- Confirm legal parentage status early and track the timing of any parental order
- Review trust definitions carefully to assess whether children born via surrogacy are clearly included
- Consider the impact on class closing provisions, vesting dates, and discretionary powers
- Advise clients to update wills and letters of wishes to reflect their intentions regarding surrogate children
- Flag potential inheritance tax and cross-border issues where international surrogacy is involved
- Encourage trustees to seek directions where beneficiary status is uncertain
Proactive advice at an early stage can significantly reduce the risk of disputes later.
Key Takeaways for Contentious Probate Practitioners
- Historic trusts can create modern disputes
- Beneficiary definitions are a key battleground
- Trustees should act early where uncertainty exists
- These disputes are often emotionally charged
- Proactive planning reduces risk
How We Can Help
At Myerson, our specialist Contentious Probate, Wills and Trusts team advises trustees, beneficiaries, and families on all aspects of trust and inheritance disputes, including:
- Trust interpretation and construction disputes
- Beneficiary entitlement claims
- Challenges to trustee decisions
- Inheritance and estate claims
- Court applications relating to trusts and estate administration
Contact Our Contentious Probate, Wills and Trusts Team
If you are a trustee facing uncertainty or a beneficiary concerned about your position, early legal advice can be critical in protecting your interests and avoiding costly litigation. Speak to our knowledgeable team.
0161 941 4000
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Nichola Bright
Partner
Nichola has over 16 years of experience acting as a Family solicitor. Nichola has specialist expertise in divorce and high net-worth financial settlements, separation, co-habitation, pre-nuptial agreements, complex disputes regarding children, fertility law and surrogacy law.
About Nichola Bright