Adopted children and trust disputes

HomeAdoption Legal CentreNigel PriestleyAdopted children and trust disputes

Sometimes Courts have to make decisions where the answer seems clear to most of us. Are adopted children equal to birth children? Should they be entitled to equally benefit from a will? The answer seems blindingly obvious, but unusual circumstances can arise.

In 2017, two adopted adult children, David Hand and Hilary Campbell, had to bring a court case to call on their rights under the European Convention of Human Rights to be treated as equal alongside their cousins, the birth grandchildren of their grandfather.

This was the case of Hand & another v George & another.  Henry Hand who died in 1947, was survived by his three children, Gordon, Kenneth and Joan.  Henry’s will created a trust for his 3 children and their children.  Kenneth adopted two children, David and Hilary.  The wording of Henry’s will at the time that he made it, excluded adopted children.  David and Hilary had no entitlement to benefit from their grandfather’s trust unless they could prove that their rights under Article 8 and Article 14 of the European Convention of Human Rights could and should override the discriminatory effect of the law, so that they would be treated equally with their cousins.

Article 8 of the Convention provides for ‘respect for private and family life’.  Article 14 provides that the rights and freedoms set out in the Convention “shall be secured without discrimination on any ground such as sex, race, colour … birth or other status”. The Convention was implemented as law in the UK by the Human Rights Act 1998.  If the High Court had found that David and Hilary were not able to rely on the Convention, then their father’s share of the trust fund would have gone to their cousins. The cousins argued that if Henry had wanted to include adopted grandchildren then he could have done so. They said David and Hilary were not entitled to rely on the Convention to achieve a different result.  To do so, they argued, would subvert Henry’s intentions. But did Henry Hand even consider this when he made his will!?

The Court found that David and Hilary should succeed. Their Convention rights under Article 14 in conjunction with Article 8 must be respected.

Sarah Young – Director & Solicitor

Sarah Young