A recent High Court decision has brought attention to the risk that outdated inheritance rules can pose for modern families, particularly where children are born through surrogacy.

The case concerned the family of Ceawlin Thynn, the 8^th Marquess of Bath, and his wife, Emma Thynn, Marchioness of Bath, who have two sons, John and Henry. Henry, the couple’s second child, was conceived by the couple genetically and carried by an American surrogate due to medical complications Emma faced during her first pregnancy.

There was uncertainty over whether Henry, as a surrogate child, would qualify as a beneficiary under the historic wording of the family trusts designed to provide for future generations. The trusts relied on pre-1970 common law wording, drafted before the development of modern fertility treatments such as surrogacy.

Instead of asking the Court to rule definitively on the meaning of the trust terms, the trustees opted for a more practical and flexible approach. They sought the Court’s approval to exercise their existing powers to restructure the trusts, effectively creating a framework that would allow the child to be added as a beneficiary at a later stage.

In approving the proposal, the High Court emphasised the importance of fairness in modern trust administration. The judge acknowledged that excluding a child solely because of the circumstances of their birth, particularly where they were the biological child of the family, would be both unjust and inconsistent with contemporary family realities.

Why this matters in Northern Ireland

The decision is particularly relevant in Northern Ireland, where:

• The surrogate is recognised as the child’s legal parent at birth, regardless of genetic connection
• Intended parents acquire legal parenthood only after obtaining a parental order
• Legal parentage and trust entitlement may not automatically align.

This can create uncertainty for surrogate-born children in the context of wills and trusts, particularly where documentation relies on traditional definitions.

This ruling is also especially relevant in the face of recent budget changes. Significant shifts in the treatment of capital taxes have resulted in trusts being utilised more often in the current economy.

We regularly see trusts being used in family law when families are separating and the parents want to invest funds or assets for the future of their children. Trusts can also be used to pass wealth to the next generation, to secure inheritance and to protect assets. Use of proper language in drafting a trust is more important than ever.

Key takeaways on trusts and surrogacy

• Review and update drafting: Ask a lawyer to review wills and trusts – in case they unintentionally exclude children born through surrogacy.
• Ensure prompt parental orders: Note that legal parentage remains central to inheritance rights.
• Trustee flexibility: Trustees may be able to address gaps using existing powers but may require court approval.
• Consideration of Trusts: If the above is accepted as standard practice, trusts drafted appropriately can be used to secure assets flexibly in terms of both family law and succession planning.

If you have any queries regarding surrogacy and the potential impact on inheritance, wills, or trust arrangements, our team can help ensure children born through surrogacy are appropriately provided for and your arrangements reflect your intentions.

For support, contact the Millar McCall Wylie Family and Matrimonial team on 02890 200050.