Analysis
By his will dated 6 May 1946 Henry Hand (testator) directed his trustees to hold his residuary estate upon trust as to one equal third part (Kenneth’s share) to pay the income thereof to his son Kenneth Hand during his life and on his death as to both capital and income thereof for such of his children as attained the age of 21 years and if more than one in equal shares. In default of children, Kenneth’s share was directed to pass to the testator’s children, Gordon Hand and Joan George. The testator died on 9 June 1947 survived by all three children. Gordon Hand died without issue on 15 July 1975 and his share passed to his brother and sister, Kenneth Hand and Joan George. Joan George died on 24 August 1981 leaving two children, the defendants. Kenneth Hand died on 17 August 2008 leaving two children, the claimants. Whereas the defendants were the birth children of Joan George, the claimants were the adopted children of Kenneth Hand. The question which arose was whether adopted children were included within the testator’s description of ‘children’ for the purposes of his will. The claimants accepted that, under the domestic law then in force, they were not included and Kenneth’s share would therefore pass to the defendants. However, they claimed to rely on their rights under Art 14 of the European Convention of Human Rights (Convention) in conjunction with Art 8 to override the discriminatory effect of that domestic law and therefore were entitled to inherit Kenneth’s share.
Held (allowing the claim):
At the time the testator made his will the law relating to adoption was that set out in the Adoption of Children Act 1926 (1926 Act), which provided that a child remained the child of his or her birth parents rather than a child of his or her adoptive parents. Section 5(2) of the 1926 Act expressly provided that the expression ‘children’, when used in a disposition whether made before or after the making of an adoption order, shall not (absent a contrary intention) include adopted children. This legislative effect was reversed by the Adoption of Children Act 1949 (1949 Act), which provided that adopted children were to be treated as the children of their adoptive parents rather than of their birth parents. Section 9(3) provided that in any disposition made after the date of an adoption order, any reference to the children of the adopter shall be construed as including a reference to the adopted person.
The present law was contained in Section 39 of the Adoption Act 1976 (1976 Act) which provided that an adopted child shall be treated in law as the child of the adopter and not the child of any other person. However, para 6 of Sch 2 to the 1976 Act limited its effect by providing that s39 should not apply (a) to an existing instrument or enactment insofar as it contains a disposition of property or (b) to any public general Act in its application to any disposition of property in an existing instrument or enactment. This, therefore, prevented the interpretative provisions from applying to the testator’s will.
Article 14 of the Convention provided that the enjoyment of the rights and freedoms set forth therein (including the right to respect for private and family life, home and correspondence as set out in Art 8) shall be secured without discrimination on any ground, and Art 1 of the First Protocol provided that no one should be deprived of his possessions except in the public interest and subject to conditions provided for by law. The European Court of Human Rights (ECHR) had consistently held in case law that a national court’s interpretation of a testamentary disposition discriminating against adopted and illegitimate children amounted to judicial deprivation of their inheritance rights in violation of Art 14 read in conjunction with Art 8. For the claimants to succeed they had to show not only that they were victims of an infringement of the ECHR but also that they had the right to seek a remedy from the domestic court under the Human Rights Act 1998 (HRA). Section 2 of HRA provided that a court determining a question which had arisen in connection with a Convention right must take into account any judgment of the ECHR. Section 3 of the HRA provided that a court must interpret legislation, so far as it is possible to do so, by reading into and giving effect to that legislation in a way which was compatible with Convention rights. The leading authority was the House of Lords decision in Wilson v First County Trust Ltd (No 2) when it was noted that the HRA was retrospective in the sense that it applied to legislation whenever enacted and could have the effect of changing the interpretation of legislation already in force. There was, however, a presumption against the retrospective operation of legislation and the underlying principle was that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which was unfair to those concerned, unless a contrary intention appeared. The correct approach was to identify the intention of Parliament in respect of the relevant statutory provision in accordance with this statement of principle. The more recent High Court decision in In Re Erskine 1948 Trust was to be distinguished insofar as it read the speeches in Wilson as suggesting that to question whether the HRA operated retrospectively should depend on case specific factors. The exercise for the court was not a general balancing of fairness or unfairness of claims of the particular parties; instead it was to identify whether a Convention right of the claimants has been infringed and if so whether the HRA provided a means of providing redress for that infringement in this court.
The conduct of the state of which the claimants were complaining was the failure of the 1949 Act and the 1976 Act to overturn s5(2) of the 1926 Act insofar as it applied to the testator’s will. In precise terms, it was para 6 of Sch 2 to the 1976 Act which was the discriminatory provision without which the reference to ‘children’ in the testator’s will would have included the claimants pursuant to s39 of the 1976 Act. There was no doubt that this legislation infringed the Convention rights of the claimants by failing to provide that the interpretative provisions in s5(2) of the 1926 Act had no continuing effect where a will falls to be construed after the coming into force of the Convention. A ‘reading down’ of the domestic legislation so as to uphold the claimants’ rights not to be discriminated against was not truly a retrospective application of the HRA because the critical question of whether Kenneth Hand had any ‘children’ within the meaning of the testator’s will only falls to be determined on his death (ie after the coming into force of the HRA). Moreover, the defendants had done nothing to avail themselves of interests which were ‘vested’ in the sense as used in Wilson. It was thus possible to read down para 6 of Sch 2 to the 1976 Act pursuant to s3 of the HRA so that it complied with the claimants’ rights under the Convention by construing it as if it read as follows:
Section 39(a) does not apply to an existing instrument or enactment insofar as (i) it contains a disposition of property, and (ii) the beneficiary of the disposition has done nothing to avail himself or herself of the property right in question before the coming into force of the Human Rights Act 1998.
It followed, therefore, that the claimants’ action succeeded and they, not the defendants, were entitled to inherit Kenneth’s share.
Judgment ROSE J: [1] Henry Hand died on 9 June 1947. He was survived by his three children, Gordon Hand, Kenneth Hand and Joan George. In 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 in each case …Continue reading "Hand & anr v George & anr [2017] EWHC 533 (Ch)"