Adopted Children’s Human Rights Prove Decisive in Will Dispute

Human rights are not often an issue when dealing with Wills. There is no such thing as a ‘human right to an inheritance’ in the UK.

Even in some European countries, where ‘forced heirship rules’ exist, you couldn’t really say you had a human right to inherit your parents’ property. In France, for example, one rule means you are required to give at least 75% of your estate’s value to your children in your Will for it to be valid. Your children would have rights – but ‘human rights’?

Nonetheless, the recent case of Hand v George [2017] EWHC 533 (Ch) was actually decided on the basis of human rights. The case involved a dispute over the interpretation of a Will and the claimants relied upon the European Convention on Human Rights (the ECHR). This was in a situation where both claimants and defendants agreed that the claim had no chance of success under domestic law.

The Background

The case concerned the Will of Henry Hand, which had been made in 1946. When Henry died a year later, he was survived by his three children: Gordon, Kenneth and Joan.

Henry’s Will included a life interest trust.

A life interest trust involves leaving money and/or assets (the trust property) to certain people for their lifetime. Those people are sometimes referred to as the ‘life tenants’. The terms of the trust will specify certain beneficiaries, or a type of beneficiary, who will receive the trust property after the death of the life tenants.

Henry’s life interest trust left the remainder of his estate to his three children for their lifetimes, split equally between them. Upon their deaths, their shares would be passed to any of their children who reached the age of 21. In other words, Henry’s grandchildren were to be the final beneficiaries of the remainder of his estate. If more than one grandchild reached the age of 21, the trust property was to be shared out equally between them.

In this way, Henry was able to make provision for grandchildren who hadn’t even been born yet.

Gordon died childless, but both Kenneth and Joan had children. Joan’s children, Elizabeth and Richard, had been born before Henry died in 1947. Kenneth adopted two children, David and Hilary. Neither had been born before Henry died.

Kenneth was the last of Henry’s children to die. Upon his death in 2008, he was therefore the last life tenant of Henry’s life interest trust which brought the trust to an end.

The Dispute

The dispute arose over the question of whether Kenneth’s two adopted children, David and Hilary, could inherit Kenneth’s share of the trust property. Joan’s children, Elizabeth and Richard, were her biological children. They argued that adopted children would not qualify as beneficiaries under Henry’s Will and so, Kenneth’s share should pass to them as the only qualifying grandchildren.

Their argument had a strong foundation. At the time Henry’s Will was made, in 1946, the Adoption of Children Act 1926 was in force. This treated adopted children as still being the ‘children’ of their birth parents for the purposes of interpreting Wills. This meant that Wills made by the adoptive family, which referred to ‘children’, should be interpreted as excluding adopted children – unless explicitly stated otherwise.

Elizabeth and Richard argued that if Henry had wanted to include adoptive grandchildren, he would, and should, have specified this in his Will. Although it is worth remembering that David and Hilary hadn’t even been born at the time of Henry’s Will, let alone been adopted.

Two years after Henry’s death, the law changed. The Adoption of Children Act 1949 altered the law to the approach we would recognise today; essentially, adopted children would be treated as being the children of their adoptive parents when interpreting Wills.

Although this change was applied to some pre-existing documents, the Act’s provisions meant that it did not apply to Henry’s Will. As such, mentions of ‘children’ in Henry’s Will were to be interpreted as excluding adopted children.

The Human Rights Claim

Faced with this, David and Hilary’s claim could not have succeeded under domestic law. Instead, they claimed they were entitled to Kenneth’s share on the basis of their human rights. They argued that if the law denied this share to them because of their adopted status, it would be in breach of those rights.

The rights they relied upon were:

• The right to respect for privacy and family life – Article 8 of the ECHR.
• Protection from discrimination – Article 14 of the ECHR. This covers many different kinds of discrimination; sex, race, age etc, but the type which applied in this case were on the grounds of ‘birth status’.

The ECHR is a treaty between member states, agreeing to protect a set of fundamental rights and freedoms. It also allows citizens of member states to apply to the European Court of Human Rights (ECtHR) as another legal avenue if their human rights have been infringed by their government. Its implementation in the law of England and Wales is largely covered by the Human Rights Act 1998.

Even though the ECHR came into force in 1953, six years after Henry’s Will was made, it nonetheless proved central to David and Hilary’s case.

In deciding the case, the High Court confirmed it did not see the claim as trying to impose human rights considerations on Henry’s Will retrospectively. Instead, the Court regarded it as a question of interpretation at the time of Kenneth’s death in 2008. That was when the Will’s provisions on the life interest trust had to be interpreted, so that was when human rights considerations should also be taken into account. Therefore, the question to be answered was: would preventing David and Hilary from inheriting, through the domestic law, breach their human rights?

The Court was influenced by cases which the ECtHR had already determined. These indicated that Articles 8 and 14 could be used to prevent discrimination of illegitimate or adopted children.

The Court also recognised that it wasn’t a matter of overruling the terms of Henry’s Will. The Will used the word ‘children’ (in the context of Henry’s grandchildren). It depended entirely on the legal interpretation used whether that would include adopted children or not.

Following the applicable domestic law would result in adopted children being excluded. The Court ruled that this would amount to discrimination and a breach of the David and Hilary’s human rights and so their claim was successful.