I have inherited a trust where grandma drafted a will in 1999 which left "£1,000 to A being the child of B upon them attaining the age of 21. We have held the funds to await their 21st birthday and am about to pay out the funds. As part of the ID we require A produced an adoption certificate to show that she was adopted away from B in 2000, after the will was drafted but before grandma died. I know its not an intestacy but because the clause describes her as “being the child of” do I have to consider whether the gift should be paid out. My initial thought is not because she is named specifically but would appreciate any thoughts?
I would be reluctant to rely upon A being named, with the reference to them being “the child of B” as of no consequence. It may be that as the adoption took place only a year after the will was made the testatrix was aware of the likelihood, which would strengthen the argument to make of the payment.
However, mindful of the amount involved, and the potential cost of obtaining advice to resolve the question, might it be appropriate to put the matter to the residuary legatees (who would usually benefit from a failed legacy), pointing out that the costs of resolving the question would be disproportionate to the value in question? I would be inclined to seek their written agreement to pay the legacy notwithstanding any uncertainty. If they say “No”, then you will have avoided the potential for a dispute after the funds had been paid out, and the residuary beneficiaries will be aware of the consequences of their refusal.
I note no time frame for “grandma’s” death has been given. If the administration of the estate was completed some while ago, and the residuary beneficiaries are aware of A’s situation and that monies have been retained to satisfy the gift to A, their tacit approval might reasonably be implied.
I agree with everything that Paul has said but would add that (bad timing aside) the argument that “child of…” was a condition rather than aid to identification must be very weak indeed (FAOD I’m not suggesting Paul is arguing in favour of it).
A remains a child of B in the biological (and plain English) sense. The only alternative construction, that granny intended to revoke the legacy if A was adopted, should have involved some very clear words on the part of the draftsman and definitely a clear note of the instructions. Any chance that the 1999 will file would have survived to check?
Osborne Clarke LLP