Since 1926 child adoption has had legal status in England and Wales, meaning that adopted children have the right to inherit from their adopted parents. In cases of intestacy if an individual has been adopted they are an heir of their adopted parents and can no longer inherit from their biological parents.

The case of Erskine Trust, Gregg and anor v Pigott and ors [2012] EWHC 732 (Ch) confirms the status of ‘statutory next of kin’ for adoptees.

The case revolved around a trust settlement from 1948. The sole beneficiary of the trust died in 2010 leaving no heirs. However her predeceased sister left two sons who she had adopted 60 years before. The court had to decide the meaning of ‘statutory next of kin’ under s 50(1) of the Administration of Estates Act 1925 (AEA 1925) and whether the European Convention on Human Rights could have a retrospective effect on AEA 1925 and the construction of a 1948 settlement.

The trustees argued that ss 46(1) (v) and 47(1)(i) of AEA 1925 did not include adopted children as ‘issue’ or ‘statutory next of kin’ and the brothers should therefore be excluded from the intestacy. The brothers on the other hand argued that 1948 law should not apply to 2010 facts and that the settlement should be interpreted in light of Arts 8 (right to family life) and 14 (prohibition on discrimination) of the European Convention on Human Rights. They also highlighted a case where an adopted child was found to have a claim on a 1939 will. Pla v Andorra [2006] 42 EHRR 25.

The Judge found for the sons accepting that the convention could have an effect on the construction and effect of an existing will and could apply retrospectively so long as that could be achieved “without unfairness.”

In contrast, once adopted, and regardless of their age at adoption, an individual is no longer an heir of their blood parents. A 2011 case in Virginia, USA, Kummer v Donak, 282 Va. 301 (2011) upheld these principals.

Mary Frances Kummer was adopted by her husband’s aunt when she was 53. When her blood sister Justine Critzer died intestate in 2006 the estate’s administrator determined that either Mary’s children or some distant cousins were the only possible beneficiaries. However a Virginia circuit court ruled that due to Mary’s adoption her children were not Justine’s heirs-at-law.

On appeal the Virginia Supreme Court,  upheld the ruling on the basis that under Virginia code 64.1-5.1 an adopted child is no longer the child of the biological parents but of the adopting parents and under Virginia law the age of adoption is not relevant. Therefore as far as intestate succession is concerned, once she had been adopted Mary ceased to be the child of her biological parents or Justine’s sister. This meant that Mary and her descendants were divested of all inheritance rights so her children were not Justine’s heirs-at-law and could not inherit from Justine’s intestate estate.

A separate issue to consider is that a will can be challenged by a spouse should they feel that they have not been sufficiently provided for.

Barbara and Ron Lilleyman were married in 2007. Ron was a widower and had two sons from his previous marriage. Barbara gave up her part time job and sold her own property giving the £175,000 proceeds to Ron. They lived in a jointly owned home and Ron also owned a second property as a holiday home.

Unknown to Barbara, in 2008 Ron changed his will so that Barbara would inherit his personal possessions, a small annuity, and have a right to live in the two properties until her death. The rest of his £6m estate would pass to his two sons.

After his death Barbara made a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (Lilleyman v Lilleyman [2010] EWHC 821 (Ch) arguing that insufficient provision had been made for her. She won the claim and the two properties were transferred to her outright.

In these times of rogue traders and fraudulent claims becoming ever more prevalent, lawyers need to be sure that every aspect of the heir hunter’s portfolio is in order before employing them. With all this activity in the courts it is more important than ever before that care is taken to choose a highly professional firm of probate genealogists, such as Finders.

For further information and advice contact Finders, 6-8 Vestry Street, London N1 7RE 020 7490 4935