section 33 Wills Act 1837 and adoption


(Emma Davies) #1

I have an estate where the testator has left a small legacy to her daughter who sadly predeceased her. There is no contrary intention in the will and I have interpreted it so that section 33 Wills Act 1837 shall apply.

The deceased daughter had three children, but one of the three children was put up for adoption and legally adopted.

I understand that section 39 of the Adoption Act 1976 states that an adopted child is to be treated in law as the legitimate child of the adoptive parents and not the child of the biological parents.

I am assuming that this means that the child placed for adoption will not have any claim under section 33 Wills Act 1837 but I would feel reassured if anyone can share their experience with this?

Emma Davies
masefield solicitors LLP


(Caroline Wilden) #2

I have no experience of this situation however I would agree with your thinking and the adopted daughter would have no claim against the biological parent.

Caroline Wilden
Probate Solicitors


(John Cartlidge) #3

Although I dealt with an intestate matter and the same issue arose; one of a sibling group had been legally adopted ‘out’ of the blood line and did not inherit.

John Cartlidge
Campion Solicitors


(Paul Saunders) #4

Whilst I agree with the analysis – that under the Adoption Acts, the child who has been adopted (since 31 December 1949?) has no right to inherit through a biological parent – I believe the situation may no longer be so straight forward, in the light of the decisions in Re Erskine: Gregg v. Piggott (2012) and Hand v. George (2017). Although they look at the rights of a child to inherit through their adopting parents, I believe the same principles might be applied the other way round.

In the case in point, as only a “small legacy” is involved, it may not be worthwhile for the adopted child to pursue the issue (other than on a point of principle).

Paul Saunders