Definition of issue - adopted children


(Mark Woolley) #1

Does issue include adopted children? I am looking at a trust deed dated 26 April 1955. The trust fund passes on the current life tenant’s death to her issue. She has two adopted children born September 1975 and July 1978.

Mark Woolley

Price Bailey


(Paul Saunders) #2

The recent decision in Hand v. George (http://www.bailii.org/ew/cases/EWHC/Ch/2017/533.html) was that adopted children benefitted under a 1946 trust instrument, as to decide otherwise would be discriminatory and deprive them of their rights under the Human Rights Convention.

It would therefore seem that the adopted children in the case in question may similarly be entitled although, as Hand v. George is a first instance decision, the trustees might want to obtain the protection of an opinion from Chancery counsel before confirming to any of the interested parties the future beneficial interests in the trust.

Paul Saunders


(Fraser and Fraser) #3

Issue would include adopted children. Legal adoption started in 1927 so as long as they have been adopted through a UK court, they are treated the same as biological children.

Dunnie Dickie-Johnson
[Fraser and Fraser]


(Paul Saunders) #4

Whilst legal adoption may have started in 1927, it was not until the Adoption Act 1958 came into effect that adopted persons had any statutory entitlement to share in the estates of their adopting parents. That Act also removed any claim they might have on the estates of their biological parents.

Under the Human Right Convention, it seems persons adopted before the 1958 Act came into effect now have a right to claim against the estates of both their biological parents and their adopting parents as a result of the decisions in Gregg v. Piggott and Hand v. George. How long before we have a case brought by someone adopted after the 1958 Act came into effect, claiming an entitlement to the estate of one of their biological parents?

Paul Saunders


(andrew.goodman) #5

I’m not sure that Dunnie is correct - the 1926 Act expressly said the opposite: that adopted children would not be included within “issue” for the purposes of wills and property. I suspect that despite subsequent statutes, this will still fall into a lacuna under “regular” English law - hence the need for the HR case recited by Paul.

Andrew Goodman
Osborne Clarke LLP


(Paul Saunders) #6

In re-reading my latest post, I have realised that it did not actually address the initial situation posed.

My amended comments are:

Whilst legal adoption may have started in 1927, it was not until the Adoption Act 1958 came into effect that adopted persons had any statutory entitlement to share in the estates of their adopting parents (or, through their adopting parents, in any trust funds created after the 1958 Act came into effect). That Act also removed any claim they might have as issue of their biological parents.

Under the Human Right Convention, it seems persons adopted before the 1958 Act came into effect now have a right to claim an interest in any estate or trust fund (whenever created) as issue of both their biological parents and their adopting parents as a result of the decisions in Gregg v. Piggott and Hand v. George. How long before we have a case brought by someone adopted after the 1958 Act came into effect, claiming an entitlement in an estate or trust fund, of, or through, one of their biological parents?

Paul Saunders


(Mark Woolley) #7

Thank you all for your posts. I have now been advised that as well as the 2 adopted children, there are also 3 biological children from a former marriage.

Mark Woolley
Price Bailey


(pturvey) #8

This has been an interesting topic – I hope I’m not too late to comment. Our case experience at Anglia Research broadly concurs with Paul’s response to this question. However, I can perhaps add the following which might be of some help:

  • Whilst adoption was first introduced into English law by the Adoption of Children Act 1926, in respect of dispositions of property, gifts to “children” or “issue” did not include adopted children (unless a contrary intention appeared in the will or settlement).

  • As we understand the historical development, this position was changed by the Adoption of Children Act 1949 (and re-enacted in the Adoption Act 1950) such that adopted children were thereafter included under a gift to children provided that the will was executed after the adoption order was made (and again subject to any contrary intention). This basic provision was re-enacted by the Adoption Act 1958, with minor differences.

  • In respect of testators dying after 1 Jan 1976, per the Adoption Act 1976 (the substantially same provisions of which are now contained in the Adoption of Children Act 2002) an adopted child is regarded as the lawful child of the adoptive parents (or parent). Thus an adopted person is no longer disqualified merely because his adoption is subsequent to the will or settlement.
    In Mark Woolley’s case, the trust deed is dated 26 Apr 1955, so after 1 Jan 1950. However, as I understand things, the rules of construction in the 1976 Act do not affect “existing instruments” i.e. instruments made before 1 Jan 1976.

Again, by way of addition to Paul’s suggestion that the adopted children in this case may have an entitlement on the basis of a possible breach of the Human Rights Convention (Article 8 and/or Article 14), there is useful a commentary on that possibility in Tolley’s Administration of Estates at Part E1.9 inclusive of a summary of Gregg v Piggott [2012] and Hand v George [2017].

At the end of the day, this question would seem to involve some subtleties, and it has to be said that the legislation is quite complex, so I do agree that it would be prudent to seek the view of Chancery counsel in relation to the particular trust deed in this case and its dovetail with the historical development of the relevant law. It seems to me that much of the complexity arises from the somewhat erratic development of English succession law in so far as it has differentiated (historically) between the property rights of adopted children and those of legitimated children.

Peter Turvey

Anglia Research