Trust the experts: Avoid class closing issues - lessons from "The Perfect Couple"

We’ve all been hooked on the latest Netflix show “The Perfect Couple” - a six-part mystery drama mini-series with a stellar cast, where an idyllic wedding takes a dark turn when a dead body surfaces in the water.

As the investigation unfolds, secrets also rise to the surface revealing a not-so perfect family. We've all been transfixed by the flash mob opening dance, but what really caught our legal eye are the challenges surrounding the family trust and some tricky issues regarding class closing and the status of unborn children… 

A class in a trust

The family trust in the show appears to benefit the children of Tag Winbury, who all are due to inherit when Tag’s youngest child turns 18 and the class of beneficiaries’ “closes”. Tag’s youngest son Will is just weeks away from this, and eldest son Tom is desperately in need of a payout. However, Tag’s affair with Merritt and her pregnancy could jeopardise this.

As ever, the actual legalities are a bit hazy…

A class in a trust refers to a group of beneficiaries who share the same characteristics, ie children. The definition of "children" can vary based on the terms of the trust. Therefore, clear drafting is crucial to avoid ambiguity.

Traditionally, "children" only included legitimate offspring. However, modern case law has held that if the clause is silent "children" will also include illegitimate and adopted children, so it’s very probable that Merritt’s illegitimate child would be included in the class. 

But what if youngest son Will reaches 18 before Merritt’s child is born? Again, this is a bit problematic, but there is the concept of “En ventre sa mѐre”, which means that an unborn child in the womb can be a legitimate beneficiary. 

A trust can be expressly drafted to exclude these children. However, if the trust is silent, children who are en ventre sa mère can be included in the class of children, but their interest only vests if they are born alive. This ensures children who are born alive can benefit from the trust, which is fair and logical.

Seeking expert advice is necessary when drafting the definition of children to ensure that intentions are drafted clearly and in a legally compliant way.

Class closing rules

Trusts can be drafted so that the class of beneficiaries closes at specific events. However, if the Trust is silent as to when this closes the rules of convenience, class closing rules apply to prevent delay and uncertainty.

The Winbury Trust appears to have an age contingency eg the class closes when Tag’s last-born child reaches the age of 18. This is pretty unusual as Tag could (and is likely to) continue to father children for a long time to come. Most trust documents provide that the class of beneficiaries closes when the eldest child reaches the age of 25 or a set date, as this gives certainty over the potential beneficiaries. It also helps avoid the spouses of existing beneficiaries murdering anyone who their philandering father-in-law gets pregnant.

The Perfect Couple has a great storyline, but the actual legalities are a little hazy. It also seems a bit unusual that Benji, on behalf of his mother, asks Amelia to sign a NDA regarding the events, but seemingly nobody has discussed a pre marital agreement with her or money obsessed Abby.

If you would like to better understand the terms of a family trust, please speak to your usual Mills & Reeve contact for further details of the planning or contact one of our specialists here.