Will Trusts, Adopted Children and Human Rights

What application has the Human Rights Act have in the context of wills and will trusts that pre-date human rights legislation? We go back in time to look at a ruling in a case that involves a 1946 will trust which gave rise to a wills dispute involving adopted children.

In Hand and another v George (2017)[1], the testator died in 1946, leaving the residuary estate to his three children in equal shares for life with the remainder to such of their children who attained the age of 21 in equal shares. The claimants in this case were the adopted children of one of the deceased’s sons who died in 2008.

However, the will trust did not include adopted grandchildren within a class of beneficiaries. At issue for the court was whether adopted children count as ‘children’ for the purposes of this will.

When the testator wrote his will trust, the law on adoption was as set out in the Adoption of Children Act 1926 which provided that a child remained the child of his or her birth parents rather than becoming in law the child of their adoptive parents. This position under that Act was reversed by the Adoption of Children Act 1949 (the court provided a helpful consideration on the development of adoption law over the years in the context of succession).

The claimants accepted that the 1926 Act precluded them from entitlement under the will. However, they argued that they could rely on their rights under Article 14 ECHR in conjunction with Article 8 ECHR to override the discriminatory effect of the domestic law, so that they are treated as equals with the birth grand-children of the testator.

What did the court decide?
The High Court ruled that the 1946 will discriminated against the adopted grandchildren’s rights under Article 14 ECHR in conjunction with Article 8, and the claimants’ action succeeded.

Rose J said that this application of the HRA “does not, in my judgment, amount to the retrospective application of the HRA in a way which is inconsistent with the decision of the House of Lords in Wilson … because:

i) the issue of the proper interpretation of [the testator’s] will only arises for consideration on the death of [the son] who died in 2008, after the HRA came into effect; and
ii) since the Defendants have done nothing to avail themselves of the remainder interest they acquired under the will in 1946, their rights are not ‘vested’ in the sense used in Wilson to describe the kinds of rights that should not be interfered with even by the prospective operation of legislation to change the rights and obligations of parties under private instruments arising from post-Act events”

Practitioners may, from time to time, need to interpret and apply the terms of wills and trusts that pre-date the HRA. This ruling is a necessary reminder of the need to consider the potential implications of human rights legislation and Convention rights in some matters.

[1]Hand and another v George [2017] EWHC 533 (Ch)

 

 

Back to the SOLICITORS group News

Media Centre

“The Solicitors Group online directory is an established and respected channel for legal professionals, meaning I can talk to my existing and future customers about products and services both quickly and easily.”

Carole Hatton
Marketing Manager
Landmark Information Group

“Reaching our niche market can sometimes be challenging, however we find promoting our legal training courses on www.thesolicitorsgroup.co.uk an excellent way of contacting both existing and new customers. The service we receive from The Solicitors Group is both professional and relevant to our core activities and we would recommend their services to others.”

Euromoney

“I must say that to date we have been very pleased with the referrals we are getting from your site.”

Paul West
Orchid Cellmark

“The Newsdesk feature on www.thesolicitorsgroup.co.uk is ideal for us. Its prominent location on the site provides a great platform to communicate key messages to existing and potential clients.”

Neil Phillips
Marketing Manager
Countrywide Legal Indemnities

"We are very happy with the referrals we are getting from The Solicitors Group web-site."

C.A. Bishop
Technical Director
Wickham Laboratories Ltd

“We received 419 click-throughs to our site from advertising with www.thesolicitorsgroup.co.uk”

Legal Prospects

“Putting myself in my potential client's shoes, I consider www.thesolicitorsgroup.co.uk to offer perhaps the clearest and most user-friendly listing of expert witnesses, especially in its choice of index terms.”

Ivan Vince
ASK Consultants

“The banner ad looks great”

Samantha Dawson
Director
The Bundle Business Limited

“The Solicitors Group has been fantastic in helping us to raise awareness about bowel cancer, which kills 16,000 people every year in the UK. Bowel Cancer UK aims to save lives by raising awareness of bowel cancer, campaigning for best treatment and care and providing practical support and advice. Without the support of organisations such as the Solicitors Group we would be unable to carry out this vital work. We are very grateful to the team at the Solicitors Group for their support and assistance.”

Tamara Matthews
Legacy Officer
Bowel Cancer UK

“As a result of Law London, we have registered 208 new companies/firms to the website, generating £20,797 GWP to date, as well as reinforcing our presence in this very profitable marketplace.”

Aviva

“The event was well put together and executed, and the traffic of potential customers for us was high. We had a number of enquiries regarding our services after the event and we feel our attendance there was important to our overall brand exposure. We feel a Law event of this size without Euromoney Legal Training present could potentially be hurtful to us as a business. We would recommend you to attend and shall ourselves be there again in 2008.”

Euromoney

“Many thanks for the prompt service.”

Martin Gibbs MBE
Director / Investigator
Griffin Forensics Ltd

“A targeted email to key customers is an invaluable method of communication, endorse this with the Solicitors Group branding, relevant editorial content and you have created a winning combination! We look forward to reading the next edition.”

Carole Hatton
Marketing Manager
Landmark Information Group

“Talking directly to Property Lawyers is critical to us as they are key customers or potentially could be for all of our products, The Solicitors Group offer a perfect solution to get our messages right to the right people”

Carole Hatton
Marketing Manager
Landmark Information Group

“Thank you for having a useful and informative site, it is good to see a comprehensive and friendly portal.”

Stefan Fann
UK Probate Services

“Cadogans aims to keep its brand image in front of lawyers who may be looking for engineering experts. A check on Google analytics showed that referrals to our website from The Solicitors Group website were above average.”

Daphne Wassermann
Technical Director
Cadogans