Adopted sons win right to be considered next of kin in will
The High Court has applied the European Convention retrospectively to grant a £3.2m trust fund to two adopted sons.
In Re Erskine Trust, Gregg & Anor v Piggott & Ors [2012] EWHC 732 (Ch), [2012] All ER (D) 03 (Apr), Mr Justice Herbert relied on the principle of “fairness” to rule that the phrase “statutory next of kin” in a 1948 settlement could include the adopted children of the original beneficiary’s sister. Otherwise, the trust fund would have passed to cousins.
Adopted children had no property rights on inheritance at the time the trust fund was set up. The various Adoption Acts from 1950 onwards provide that “child” is to include an adopted child for the purposes of inheritance, but this does not affect earlier dispositions.
The adopted sons’ lawyers argued that it would be “anomalous to apply 1948 law to 2010 facts”, and that the court should interpret the wording of the settlement in light of Art 8 (right to family life) and Art 14 (prohibition on discrimination) of the European Convention. They highlighted the case of Pla v Andorra [2006] 42 EHRR 25, in which an adopted child was found to have a claim on a 1939 will.
Herbert J held the Convention could apply retrospectively where “that is achieved without unfairness. Similarly, I am prepared to accept in principle that the Convention becoming part of English law can have an effect on the construction and effect of an existing trust, if that can be achieved without unfairness”. Therefore, the trust fund vested in the adopted sons.
The adopted sons’ solicitor, Tony Millson, formerly of Veale Wasbrough Vizards and now head of private client law at Royds Solicitors, said it was unusual for the Convention to be applied retrospectively, and that the case could have an impact beyond wills and trusts law.
He added: “The principle of fairness played a large part in this—nobody was treated unfairly as a result of this decision.”
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