The statutory definition of 'children' does include adopted children at present, although this wasn't the case in 1946. It is always advisable to make a will, no matter how basic, to ensure your estate passes to the beneficiary of your choice.
England and Wales High Court upholds adopted children's right to inherit under 1946 will
Monday, 20 March, 2017
Two adopted children have used the European Convention of Human Rights to establish their claim to part of their grandfather's estate, even though succession law at the time of his death did not require adopted children to be treated as natural children.
Facts of the case
The litigants in the case are the descendants of Henry Hand, who died in 1947. His will, executed the previous year, left the residue of his estate to his three children: Gordon, Kenneth, and Joan George, in equal shares for life. The remainder in each case was to be shared equally among any of their children who attained the age of 21.
Gordon Hand died without having children, Joan George had two natural children, and Kenneth Hand adopted two children, all of whom reached 21. The question in this claim, the England and Wales High Court says, is whether adopted children counted as 'children' for the purposes of Henry Hand's 1946 will. Kenneth Hand's adopted children, David Hand and Hilary Campbell, the claimants in the case, maintained that they did.
Application under ECHR
Their case relied on their rights under Article 14 and Article 8 of the European Convention of Human Rights (ECHR) to override the discriminatory effect of UK domestic law in 1946 and thus treat them as equals with Henry Hand's natural grandchildren.
This was denied by the defendants, Henry Hand’s natural grandchildren, Richard George and Elizabeth Stanhope, who noted that Henry Hand had used wording in his will that excluded adopted children at the time it was executed. If he had wanted to include adopted grandchildren as potential beneficiaries then he could have done so. They argued that there is no justification for applying the ECHR to interpret a will that was drawn up before the ECHR was drafted. To allow the adopted children to inherit would subvert the intention of the testator, they said.
England and Wales High Court's decision
The law in force in 1946 was the Adoption of Children Act 1926. Section 5(2) dealt with an adopted child's entitlements to the estate of his natural and adoptive parents: '[T]he expressions "child", "children", and "issue" where used in any disposition whether made before or after the making of an adoption order, shall not, unless the contrary intention appears, include an adopted child or children or the issue of an adopted child.' This was reversed by statute in 1949, but that act expressly stated that it did not apply to deaths occurring before its enactment. Similar provisions were included in adoption legislation enacted in 1976 and 2002.
Thus, the adopted children's claim would fail under domestic English law. Their use of the ECHR, however, circumvented this. Case law already existed (Marckx v Belgium, 1979) in which the European Court of Human Rights (ECtHR) asserted that adopted or illegitimate children must be treated in the same way as natural and legitimate issue. This was confirmed by the ECtHR's judgment in Pla and Puncernau v Andorra in 2004, which specifically affirmed the inheritance rights of a grandchild by adoption where the grandparent had died in 1949.
After citing these and other considerations, Mrs Justice Rose, in the England and Wales High Court, ruled that the claimants' action succeeded: 'The court must respect their Convention right under Article 14 in conjunction with Article 8 of the Convention not to be discriminated against.' Moreover, she added, the natural grandchildren (Richard George and Elizabeth Stanhope) had done nothing to avail themselves of the remainder interest they acquired under the will in 1946, and so their rights in it were not 'vested'. Mrs Justice Rose duly found that David Hand and Hilary Campbell 'are entitled to inherit the part of their father's estate that derives from Henry Hand's will' (Hand v George, 2017 EWHC 533 Ch).
- It was decided in 2012 that the European Convention on Human Rights' ban on discrimination against adopted children overrides the definition of 'statutory next of kin' in the 1925 Administration of Estates Act when determining the beneficiaries of an existing settlement (Gregg v Pigott, 2012 EWHC 732 Ch).