Adopted children’s rights as beneficiaries and the Human Rights Act 1998.
The recent case of Hand and another v George  EWHC 33 (ch) has brought into focus the implications of the European Convention of Human Rights on some older trusts and wills that import statutory terms that could be potentially discriminatory. These could have a far reaching effect on classes of potential beneficiaries who have previously been excluded from trusts and wills.
Henry Hand died on 9 June 1947. Mr Hand had three children, namely Gordon Hand, Kenneth Hand and Joan George who survived him. By his will dated 6 May 1946, Henry Hand left the residue of his estate to his three children in equal shares for life with the remainder to each of their child or children who attained the age of 21, if more than one then in equal shares.
The Claimants in this case were David Hand and Hilary Campbell who were the two adopted children of Kenneth Hand. David was born on 16 September 1947 and adopted by Kenneth and his wife on 5 March 1948. Hilary was born on 22 December 1949 and adopted on 9 June 1950.
Gordon Hand did not have any children and Joan George had two natural children. Pursuant to the domestic law in force, the Claimants as adopted children of Kenneth would not benefit from their father’s share in the Henry Hand trust which would pass entirely to the Defendants who were their cousins.
The Claimants claimed that they could rely on their rights under Article 14 of the European Convention of Human Rights in conjunction with Article 8 to override the discriminatory effect of the domestic law so that they would be treated as equals with the birth-grandchildren of Henry Hand.
The Defendants argued that there was no justification for the court to apply the Convention to interpret an instrument that was drawn up before the Convention came in to effect and could subvert the intention of Henry Hand.
The Court found that the Claimants' action succeeded and they, and not the Defendants, were entitled to inherit the part of their father's estate that derived from Henry Hand's will.
The Judge in this case it clear 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 caused the ambiguous reference in Henry Hand's will to his grandchildren to be construed as excluding them as his adopted grandchildren.
The impact of this case could have a significant effect on potential beneficiaries of wills and trusts who may be adopted or illegitimate children and have historically been excluded from benefiting from wills and trusts.
It is anticipated that the Defendants will seek to appeal this decision and the outcome of any appeal could provide greater certainty on this are of law for practitioners.
By Scott Taylor
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