英格蘭和威爾斯高等法院 (EWHC) 已批准巴斯侯爵的請求，將其透過代孕在美國出生的幼子添加到其家族信託的受益人名單中。

男孩亨利·辛恩是侯爵夫婦的親生子女。然而，家族信託文件明確保留了1970年以前普通法中對家庭關係的描述，例如「子女」、「孫子女」和「後代」。

這些表述被解釋為指本身即為「合法」的人，並在必要時透過其他同樣合法的人追溯其親屬關係。因此，亨利是否屬於這些財產安排的受益人或酌情受益人範疇尚不確定。高等法院的馬修斯法官認為，這個問題在1978年卵子提取技術發展之前不可能在實踐中出現，因此，就此問題而言，極不可能存在任何具有約束力的判例。

侯爵夫婦希望亨利被納入受益人名單，但法院在批准將其列入名單之前，必須考慮現有受益人的利益。 2026年2月舉行的首次聽證會處理了指定非受益人作為其他受益人（特別是亨利的哥哥約翰，約翰出生於2014年）代表的程序性問題，以及受託人是否必須將受影響的受益人列為被告，以獲得法院的保護。法院同意了這項做法。

擬議的授予權力方式是，對目前持有剩餘資產的信託（侯爵是該信託的終身受益人）行使預先分配權，其方式與現有信託類似。這包括將亨利及其後代以及他們的配偶、遺孀或鰥夫納入受益人範圍內。目前，意圖僅僅是授予將亨利納入受益人範圍的權力，但暫不行使該權力，以避免任何潛在的美國稅務問題。馬修斯認為，最有可能的結果是，該權力將在巴斯勳爵去世後才會行使。

馬修斯同意，受託人確實有權做出所提議的預付款，至少在有合理理由懷疑亨利是否已屬於受益人類別的情況下，並且受“不正當目的”規則的約束。

受託人的決定是恰當且合理的：
• 因為人們認為區別對待侯爵的子女是不公平的；
• 因為讓侯爵的子女盡可能享有平等的地位，對侯爵來說在道德上是有益的；
• 無需動用自己的資源來供養亨利，這為他帶來了物質上的好處。
馬修斯正式批准了受託人推進權力的提議，並下令允許受託人這樣做（Cator v Thynn，[2026] EWHC 1045 Ch）。


TRUSTS: EWHC approves request for child born abroad by surrogacy to be added as beneficiary

The England and Wales High Court (EWHC) has approved the Marquess of Bath's request to add his younger child, born via surrogacy in the US, to the class of beneficiaries of his family trusts.

The boy, Henry Thynn, is the genetic progeny of the Marquess and his wife. However, the family trust instruments expressly retain the pre-1970 common law meanings of descriptions of family relationships, such as “child”, “grandchild” and “issue”.

These expressions are construed to mean persons who are themselves ‘legitimate’, and so far as necessary, trace their relationship through other persons who are also all legitimate.There is therefore uncertainty as to whether Henry falls into the class of beneficiaries or discretionary objects of those settlements. The question could not have arisen in practice until egg extraction technology was developed in 1978, so it is highly unlikely that there can be any binding authority on the point, according to Matthews HHJ in the High Court.

It is the Marquess and his wife’s wish for Henry to be included, but the interests of the existing beneficiaries had to be considered before the court could grant the power to add him. An initial hearing, in February 2026, dealt with the procedural question of appointing a non-beneficiary as representative of the other beneficiaries, in particular Henry's elder brother John, born in 2014, and whether the trustees were bound to join the affected beneficiaries as defendants so to get the protection of the court. The court agreed with this approach.

The proposed method of conferring the power is to exercise the power of advancement in the trusts of the settlement that now holds the remaining assets, of which the Marquess is the life tenant, in a way that mirrors the existing trusts. This includes the power to add Henry and any of his issue and their respective spouses, widows or widowers, to the class of beneficiaries. At the moment, the intention is simply to confer power to add Henry to the class but not yet to exercise it, to avoid any potential issues with US tax. The most likely outcome is that the power will not be exercised until after Lord Bath's death, according to Matthews.

Matthews agreed that the trustees do have the power to make the advancement proposed, at least in circumstances where there is a reasonable doubt as to whether Henry falls within the class of beneficiaries already, and subject to the 'improper purpose' rule.

The trustees' decision was proper and rational:
• because of the perceived unfairness of treating the Marquess's children differently;
• because of the moral benefit to the Marquess in putting his children on as equal a footing as possible; and
• the material benefit of not having to provide for Henry out of his own resources.
Matthews duly approved the proposed exercise of the trustees' power of advancement and made an order that the trustees be at liberty so to do (Cator v Thynn, [2026] EWHC 1045 Ch).

Sources
• BAILII
• STEP UK News Digest, 12 February 2026: EWHC makes initial ruling in case of potential trust beneficiary born through surrogacy