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(Chancery Division, Rose J, 17 March 2017)
Inheritance – Adopted children – Will written in 1946 – Domestic law did not include adopted children within the term ‘children’ for the purposes of this will – Whether the Art 14 and Art 8 rights of the grandchildren could be upheld.
The claim of the adopted grandchildren was allowed.
The testator died in 1947 leaving his estate to his three children and the remainder to their children. Two of the grandchildren were adopted and it fell to be determined whether adopted children could be classed as ‘children’ for the purposes of the will.
When the will was written in 1946, the law relating to adoption was set out in the Adoption of Children Act 1926. The 1926 Act provided that a child remained the child of his or her birth parents rather than becoming in law the child of their adoptive parents. That position was reversed by the Adoption of Children Act 1949 which stated that any reference to ‘children’ in any disposition of property shall include adopted children. However, for the purposes here the will had to be made after 1950, and this provision, therefore, did not apply. As a matter of domestic law, the claim of the adopted grandchildren would fail.The claim was allowed on the basis that the court had to respect the Art 14 rights taken in conjunction with Art 8 under the European Convention of the adopted grandchildren not to be discriminated against by the application of a legislative provision which caused the ambiguous reference in the testator’s will to his grandchildren to be construed as excluding them as his adopted grandchildren. That application of the Human Rights Act 1998 did not amount to a retrospective application in such a way which was inconsistent with the decision in Wilson v First County Trust Ltd (No 2)  UKHL 40.
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