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Will

14 April 2017

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Hand and another v George and another [2017] EWHC 533 (Ch)

1 Nov 2016; 3, 17 March 2017 Chancery Division Rose J

Will — Construction — Intention of testator — Testator leaving residue of estate to “children” — Will executed prior to Human Rights Convention coming into being — Whether Convention right not to be discriminated against in enjoyment of Convention rights affecting construction of will — Whether testator’s adopted children entitled to inherit under will — Adoption Act 1976 (c 36), Sch 2, para 6 — Human Rights Act 1998 (c 42), s 3, Sch 1, Pt I arts 8, 14

A clause in the testator’s will made in 1946 left the residue of his estate to his three children in equal shares for life with the remainder in each case to such of their child or children who attained the age of 21, if more than one then in equal shares. By their claim, the claimants, who were the adopted children of one of the testator’s children, accepted that under the domestic law in force, they were not included and that their father’s share would go to the defendants, who were their cousins and the trustees of the will trust. However, they claimed that they could rely on their rights under article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms in conjunction with article 8 to override the discriminatory effect of that domestic law so they were treated as equals with the birth grandchildren of the testator. The defendants submitted that there was no justification for applying the Convention to interpret an instrument that was drawn up before the Convention was drafted and to allow the claimants to inherit would subvert the intention of the testator.

On the claim—

Held, claim allowed. The defendants were not entitled to inherit the part of their father’s estate that derived from the will. The court had to 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 the testator’s will to his grandchildren to be construed as excluding them as his adopted grandchildren. The application of the Human Rights Act 1998 to achieve that result did not amount to the retrospective application of that Act in a way which was inconsistent with House of Lords authority. That was because: (i) the issue of the interpretation of the will only arose for consideration on the death of the claimants’ father in 2008, after the 1998 Act came into force; and (ii) since the defendants had done nothing to avail themselves of the remainder interest they acquired under the will in 1946, their rights were not “vested” in the sense used to describe the kinds of rights that should not be interfered with even by the prospective operation of legislation to change the rights and obligations of parties under private instruments arising from post-Act events. It was possible to read down paragraph 6 of Schedule 2 to the Adoption Act 1976 pursuant to section 3(1) of the 1998 Act so that it complied with the claimants’ Convention rights (paras 107, 108, 109).

In re Erskine 1948 Trust [2013] Ch 135 not followed.

Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, HL(E) applied.

Appearances: Jonathan Miller (instructed by Carpenter & Co) for the claimants. Josh Lewison (instructed by Birketts Solicitors) for the defendants.

Reported by: Celia Fox, barrister.

Solicitors Journal case digest is prepared by the Incorporated Council of Law Reporting for England and Wales (ICLR)

Categorised in:

Wills, Trusts & Probate