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