High Court upholds adopted grandchildren's right to inherit under 1946 will

The facts

The case of Hand and another v George and another [2017] concerned the Will Trust of Henry Fredrick Hand. The deceased had made a will in 1946 that left the residue of his estate to his three children, Gordon, Kenneth and Joan George, in equal shares for life. The remainder in each case was to be shared equally among any of their children who attained the age of 21.

Gordon died leaving no children, Joan George had two natural children and Kenneth had two adopted children, David and Hilary. 

An issue arose over David and Hilary's entitlement to benefit as, at the time the will was executed, succession law at the time of the deceased's death did not require adopted children to be treated as natural children. It was therefore unclear whether Kenneth's adopted children were within the beneficiary group.  

David and Hilary brought a claim, relying on their rights under Article 14 and Article 8 of the European Convention of Human Rights (ECHR) to override the discriminatory effect of UK law in 1946 and thus treat them as equals with the natural grandchildren. The deceased's natural grandchildren defended the claim. They said that the deceased had used specific wording in his will to exclude adopted children and to allow the adopted children to inherit would undermine the intention of the testator. They argued that there was no justification for applying the ECHR to interpret a will that was drawn up before the ECHR came into force.

The law

While under current legislation the statutory definition of "children" includes adopted children, this wasn't the case in 1946.

Article 8 of the European Convention of Human Rights provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Article 14 provides:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

In the case of Marckx v Belgium [1979], the ECHR had asserted that adopted or illegitimate children must be treated in the same way as natural and legitimate children. This was confirmed by the ECHR in Pla and Puncernau v Andorra [2004] in which the inheritance rights of a grandchild by adoption was specifically affirmed.

The decision

Taking into account the above, Mrs Justice Rose, in the England and Wales High Court, ruled that David and Hilary were entitled to inherit their father's share of the estate, accepting their reliance upon Article 14 and Article 8. She said that "The court must respect their Convention right under Article 14 in conjunction with Article 8 of the Convention not to be discriminated against by the application of a legislative provision which causes the ambiguous reference in Henry Hand's will to his grandchildren to be construed as excluding them as his adopted grandchildren."

Although from the perspective of the natural grandchildren this is the judgment of previous generations by today's standards, this decision is also an example of the Court's desire to be objectively "fair", even it was not what the testator might have wanted.

For full details of this case, please click here.

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