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)



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