Dealing with an estate where the deceased Testator made a Will leaving their estate to “such nephews and nieces of mine who shall be alive at the date of my death”.
One of the nieces (the biological daughter of the Testator’s brother) was legally adopted OUT of the family some 60 years ago. This took place before her biological parents had died.
Question is, is this niece still entitled to a share of the Testator’s estate? Biologically, she is a niece of the Testator, but is this superseded by the adoption?
Whilst the Adoption Acts are clear - that she is no longer considered a member of her biological family, the situation is somewhat muddied by the European Convention on Human Rights as applied in the case of Hand v. George (Hand & Anor v George [2017] EWHC 533 (Ch) (17 March 2017) (bailii.org)).
The bottom line question may be - did the testator consider her still to be a “niece” when he made his will? Unless there is positive evidence to show that he did view her as such, I would be inclined to apply the statutory position, and say “No” she does not benefit. However, depending on how much might be involved, it might be better to seek a formal opinion (from Chancery counsel) if there is likely to be a dispute.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thanks for your help Paul, much appreciated.
Your thoughts match my own findings after doing some research.
The circumstances of the Hand V George case are very different and I don’t feel the decision is sufficient to supersede the clear position of the Adoption Act.
The “niece” in question had no contact / relationship with the deceased and the deceased’s family so it is very unlikely she was seen as a niece by the deceased.