Specialist solicitor in contesting a will, Cavelle Leigh, discusses how adoption can affect the inheritance rights of children.
Under the Adoption Act 1976, an adopted child is to be treated in law as the legitimate child of their adoptive parents, and of none other.
When a Will refers to a child or children of the Deceased, it includes non-biological children adopted by them, but not biological children of the Deceased who have been placed for adoption.
Let’s use an example:
Peter, a widower, dies leaving his estate to “all my children in equal shares”.
Sarah is his biological child and was raised by him.
James is his biological child but was placed for adoption twenty years ago.
Andrew is not his biological child but was adopted by him ten years ago.
Sarah and Andrew will inherit from Peter’s estate, but James will not.
As James has been placed for adoption, he will not be able to bring a potential claim against Peter’s estate under the Inheritance Act 1975, unless he can show, in limited circumstances, that he was nonetheless still treated as a child of the family by Peter.
This definition of a child or children for inheritance purposes, applies whether a person dies with a Will as in the example above, or without a Will, known as being intestate.
On the surface, this may seem unfair to James. However, James may inherit from his adoptive parents instead. His adoptive parents effectively replace his biological parents in the eyes of the law.
Of course, there is a chance that James’ adoptive parents will not provide for him on their death.
Using another scenario:
James’ adoptive father David died five years ago.
James’ adoptive mother Carol remarried and died two years ago without having made a Will.
The bulk of her estate passed to her second husband under the rules of intestacy, leaving James with very little.
James is a child of the deceased for the purposes of the Inheritance Act 1975 and can bring a potential claim against her estate.
So, under the Inheritance (Provision for Family and Dependents) Act 1975, an adoptive child can bring a potential claim against their adoptive parents’ estates, but only against their biological parents’ estates in limited circumstances.
To successfully bring a claim, the adopted child must show that their financial provision, or lack of financial provision in the Will, or under the rules in intestacy is not reasonable for their maintenance.
In deciding what is reasonable the Court will consider all the circumstances of the case including:
Applications must be made within six months of:
Whilst the Court may extend this deadline at their discretion, it is wise to bring an application as soon as possible, as once the relevant Grant is obtained, the estate can be distributed.
Please also note that even if you are not eligible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, there may be other options available to you depending on your circumstances.
Holmes & Hills have specialist contentious probate solicitors able to help you through the complex and emotional process of contesting or defending an inheritance act claim.
Call us on 01206 593933 today to speak with one of our specialist contentious probate lawyers. Or complete the form below.
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