An act of love and affection by a father more than 60 years ago has ended in a legal feud that has pitted his 93-year-old daughter against the rest of the family.
Dulcie Harper's case is not helped by the cold application of the law, which refused to recognise her adopted children as beneficiaries of a substantial trust fund established by her father, the late Cape Town optician Louis John Druiff.
Now she holds out hope that the Supreme Court of Appeal will be as sympathetic to her case as her father was generous.
Harper, of Port Elizabeth, took the trust and family members to the High Court in Cape Town to have the words "descendants" "issue" and "legal descendants" in the trust deed amended to include her adopted children. But a bitter legal battle ensued when family members and trustees objected.
The preamble of the trust, which Druiff established in January 1953, reads: "For the benefit of his children and their descendants by reason of the love and affection which he bears them." The beneficiaries were Harper and her siblings, Gladys Clark, Nina Lewin and Lester Druiff, who are now dead. Their shares devolved to their children.
Eight days before his death in May 1953, Druiff amended the trust deed, saying that if one of his four offspring died without children, "his or her one-fourth share shall devolve upon the remaining children".
Harper, who could not have children, adopted David Wilkinson in 1955 and Amanda Truter in 1957. "At the time of the execution of the trust deed and its amendment I did not have any children, although I had fallen pregnant but was unable to give birth as a result of a miscarriage," she said in court papers.
"In fact, I had more than one miscarriage. [My father] was aware that I was experiencing difficulties in conceiving a baby and carrying it to full term. I had discussions with [him] regarding adoption but at that stage he had told me not to rush into anything and that I was still young and should wait to see what the future holds. [He] therefore was aware that at the time of execution of the trust deed, adoption was an option."
● He lived in Sea Point and had retired as an optician when he established the trust.
● He was 84 when he died in 1953.
● His descendants live in Cape Town, Johannesburg, Port Elizabeth and Israel.
● He and his wife, Elizabeth, had four children, of whom only Dulcie Harper survives.
● The court fight is between Harper and her two adopted children on one side, and Druiff’s three grandchildren
and five great-grandchildren on the other, supported by the trustees.
— Who was Louis John Druiff?
Part of the family
Harper said her adopted children "were considered part of the family by my siblings and ... my nieces and nephews". It was "unthinkable" that her father would have excluded her children from the trust because they were adopted.
In an emotive plea, Harper told the court that including her adopted children in the trust would be in line with the constitution, "in particular the rights of adopted children not to be discriminated against on the basis of their birth".
Her affidavit said: "Should the trust deed be interpreted to exclude ... my adopted children, the result would be that my share of the trust fund, which [Druiff] intended would benefit me and my family, would devolve on the other grandchildren of the deceased at the expense of my family."
Lawyer Peter Davis, a trustee, disputed that Druiff intended to include adopted children in the trust. He said in court papers that although Druiff might have been aware of Harper's difficulties in having children, he did not make provision for adopted children.
"It is accordingly denied that to exclude [Wilkinson and Truter], unfortunate though this might be for them, would be in conflict with the public interest," his affidavit said.
Judge Daniel Dlodlo dismissed the application in June and ordered that legal costs be paid by the trust. But Harper has lodged an application for leave to appeal.
Dlodlo ruled: "It is pertinent that the trust deed ... has the effect that only the biological descendants of [Druiff's] children are capital beneficiaries of the trust."
This week, Harper's niece and one of the trustees, Georgina Crawford, said: "This is a family matter and I have no comment about it. Any comment in any way puts one in a very bad position."
Druiff's great-granddaughter, Ruth Druiff, said: "Why do you want to write about this? I will be straight with you, I don't really like being phoned about something that is in court and that I am involved with."
Harper's lawyer, Katie Morris, said: "I have spoken to Mrs Harper, her daughter and her adviser and unfortunately a decision has been taken to not make any comments."
