Adopted Childrens' Right to Inherit

The High Court recently ruled in the case of Hand & others -v- George & others [2017] EWHC 533 (Ch)

Facts of the Case

Mr Hand died in 1947 leaving a Will that he had executed the previous year. It left the residue of his estate to his three children Gordon, Kenneth, and Joan George, in equal shares for life with the remainder to be shared equally in each case among any of their children who attained the age of 21.

Gordon Hand subsequently died without having children, Joan George had two natural children, and Kenneth Hand adopted two children, (David Hand and Hilary Campbell), all of whom reached 21. The question for the High Court was whether Kenneth Hand’s adopted children counted as 'children' for the purposes of Henry Hand's 1946 Will.

The Law

Under the Adoption of Children Act 1926, (“1926 Act”), which was the relevant legislation in force at the time, adopted children remained the children of their birth family unless the testator gave a clear intention to the contrary. No such reference was included in Mr Hand’s will therefore Joan George’s children argued that their cousins were not entitled to inherit under the terms of their grandfather’s will.

The position outlined in the 1926 Act was reversed in 1949 but the new legislation made clear that it did not have retrospective effect and that any Wills created under the previous legislation would be unaffected by the change in law.

Discriminatory Effect

David Hand and Hilary Campbell brought their case under the European Convention of Human Rights (“ECHR”), arguing that Articles 14 and 8 should be applied to remove the discriminatory effect of the 1926 Act thereby allowing them to be treated equally and to inherit under their grandfather’s estate.

In spite of the provisions of the domestic law in force at the time, the High Court agreed with them. It held that David Hand and Hilary Campbell rights’ under the ECHR must be upheld and they should not be discriminated against on the basis of their adopted status.

The case is important in highlighting the need for a properly drafted Will and in ensuring that Wills are regularly reviewed to ensure that they accurately reflect the testator’s wishes.

An application to appeal the decision has been made.

If you have any questions on the above article, please do not hesitate to contact Debbie Sadler on 0118 957 5337 or at d.sadler@hewetts.co.uk.

Published on 09/05/2017