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Hands off, it’s mine

20 Jun 2017

Henry Hand passed away in 1947. His will left his estate in trust for his three children, Gordon, Kenneth and Joan during their lifetimes and after that to their children in equal shares. If any of his children were to die without leaving a child, the share passed to the surviving siblings for life.

Gordon died in 1975, childless.

Joan died in 1981, her two natural children surviving her.

Kenneth died in 2008, leaving two adopted children. The question was whether these two children inherited half the estate.

The Adoption Act 1976 establishes that adopted children are treated as children of the adopting parents, and not the natural parents, confirming the position first established by the Adoption of Children Act 1949. Prior to that, (that is, at the time Henry died), the law was the other way round.

Kenneth’s children claimed this infringed their rights under the European Convention for Human Rights.

After consideration, the judge decided it was the failings in English statutes, not Henry Hand’s will, which brought upon the force of the Convention to support Kenneth’s children’s claimed rights.

He found the statutes wanting, when considered in the light of the Convention; adopted children fared worse than natural children in the circumstances of this case.

He also found that the date of death of Kenneth was the material time for considering the construction of the provision. Until then one could not be certain as to whether Kenneth would have any children who qualified. If he had already had natural children prior to his death, (which he did not), they could have predeceased him.

The judge therefore held that the part of estate subject to Kenneth’s life interest went to his adopted children on his demise.

Contact the DMH Stallard private client team for advice on how to plan for you and your family’s future.

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