Case law: Subsequent change in law overrides provision in 1946 Will preventing adopted children from inheriting

Will-makers should periodically review their Wills to ensure there are no subsequent changes in the law that could mean their intentions will not be carried out on death.

A Will made in 1946 left the residue of the testator's estate, after various bequests, to his three children in trust, in equal shares for their lifetime. On the death of any of his children, their share would be divided equally among their respective children who reached the age of 21.

In 1946 the definition of 'children' for these purposes did not include adopted children. One of the testator's sons had two adopted children, so the issue was whether they were entitled under the Will on their father's death.

The adopted children argued that the European Convention of Human Rights (ECHR) overrode the UK laws of 1946 because they were discriminatory. They referred to rulings by the ECHR that adopted (and illegitimate) children should be treated equally with natural (and legitimate) children, one of which specifically upheld the inheritance rights of an adopted grandchild. They argued that they should, therefore, be treated equally with the natural children in the family.

The natural children in the family argued that the effect of the testator's Will when he made it was clear - that it excluded adopted children. To include the adopted children as beneficiaries went against his intentions as set out in his Will. Also, they argued that the court should not interpret the Will by reference to ECHR rules which did not come into force until after the Will was made.

However, the High Court agreed with the adopted children, and ruled that they were entitled to inherit when their father died.

Operative date

  • Now

Recommendation

  • Will-makers should periodically review their Wills to make sure that there are no changes in the law that require them to reconsider what is in their Wills, or risk their intentions not being carried out

Case ref: Hand and another v George and another [2017] EWHC 533

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