Intestacy and adoptive siblings

I have a client whose adopted brother has died, intestate, single, without issue, both adoptive parents having predeceased him. My client is the only biological child of the adoptive parents.

I have considered the provisions of section 39 of the Adoption Act 1976 (AA 1976) which states that an adopted child is treated as a legitimate child of their adoptive parent(s) but there is no specific mention of the position in relation to adopted siblings.

The intestacy provisions expressly provide for ‘siblings of the whole blood / half blood’. Tristram & Cootes provide statements of truth for adoptive child and adoptive parents to apply on intestacy but nothing equivalent for adopted siblings, only blood siblings.

If the adopted child becomes a child of the parents via adoption are they also treated for intestacy as a sibling of the whole blood?

The wider reading of s.39 is as follows:

(1) An adopted child shall be treated in law—

(a) where the adopters are a married couple, as if he had been born as a child of the marriage (whether or not he was in fact born after the marriage was solemnized);

(b) in any other case, as if he had been born to the adopter in wedlock (but not as a child of any actual marriage of the adopter).

(2) An adopted child shall, subject to [F1subsections (3) and (3A)], be treated in law as if he were not the child of any person other than the adopters or adopter.

The manner in which the whole of subsections (1) and (2) combined are drafted would supports the general principle that the adopted child is to be treated as the brother of the other: “shall de treated in law” - “child of the marriage”.

It would follow that, “in law”, the brothers are brothers.

However there may be case-law since 1976 of which I am unaware and I am sure that as the opening bat, I stand to be corrected by those with greater experience in this particular field and would welcome that.

Peter Harris

1 Like

If an adopted child “is treated as a legitimate child of their adoptive parent(s)”, it follows that they have the same status as any “biological” child of that parent or parents.

If the client’s biological parents are the same persons as the adoptive parents of the now deceased adopted child they are deemed to be siblings of the whole blood and be recognised as such under intestacy. If they had only one common parent, I believe they would qualify only as siblings of the “half-blood”.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

1 Like

Is it not the Adoption and Children Act 2002 which is relevant ?

Under this Act an adopted child is regarded as the child of the couple who adopted him/her and no longer the child of the child’s natural parents [ACA 2002 ss 67 &144(4)]. It then follows that the adopted child is the brother/sister of the whole blood of a child (or adopted child) of the couple.

Malcolm Finney

1 Like

As an aside, I believe the position is complicated by the decision in Hand v. George [2017] EWHC 533 (Ch.) in which it was decided that, applying the Human Rights Acts, for the purposes of inheritance an adopted child had a right to benefit from a trust or estate as though they remained a child of their natural parents (notwithstanding the provisions of the 2002 Act).

Whilst it does not impact the situation referred to in the initial post, unless or until that decision is reversed in a case before a higher court, it is one that practitioners may need to be mindful of.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

1 Like