Full circle

The recent case of Re Erskine Trust, Gregg & Anor v Piggott & Ors [2012] EWHC 732 (Ch), [2012] All ER (D) 03 (Apr) raises some interesting issues around inheritance for adopted children.

The High Court has in effect allowed the retrospective application of the European Convention, and in particular article 8 – the right to family life, and article 14 – the prohibition of discrimination, to a 1948 settlement. The result means that ‘statutory next of kin’ can include the adopted children of the initial beneficiary’s sister, rather than bypassing them to entitle cousins, and that this can be applied notwithstanding the fact the various Adoption Act/Children’s Act legislation didn’t begin to appear until the 1950s.

Research methods

However, the decision does raise issues for genealogists, as well as anyone working in the wills and probate practice areas.

As research methods currently stand, it is only possible to search adoption records through the Adoption Registers held in a handful of locations around the country. These records are only searchable where you know the name of the child being adopted – but not the other way around.

What this means in practice is that in a situation in which you may know the name of a beneficiary to an estate or trust, ‘or their next of kin’, or ‘their statutory next of kin’, it is extremely difficult to prove without a doubt that this has accounted for adopted children.

In effect, it is only through extensive research, thorough investigation and in-depth family interviews that someone may let the inkling of another avenue of investigation to be looked into arise, as the potential adoptee’s name is needed in the first place, prior to being able to research their entitlement to the estate.

For such out of the ordinary, expert research, Fraser & Fraser is able to call on its army of local travelling managers who are all retired police officers – and are highly trained in the interviewing techniques required to manage highly sensitive and emotionally fraught cases face to face.

The usual questions may not always give rise to the information that someone adopted children, especially if this occurred some time ago.

Fairness test

Mark Herbert QC, sitting as a High Court judge, made the vital distinction that, in this specific case, the principle of ‘fairness’ meant that no one was left treated unfairly, in effect applying the previous ECHR ruling of Brauer v Germany [2012] 51 EHRR 23. The issues which applied to this case especially included:

• a lack of specific exclusion of ‘adopted children’ in the use of ‘statutory next of kin’;

• trusts which did not create vested interests in the course of the tenant’s life, but rather which crystallised on their death; and

• the adopted children having been close family members of the life tenant, as opposed to a much more removed group of distant cousins.

While the case is significant as being the first in which ECHR principles have been applied directly in the construction of an English private law trust, for private client practitioners the crux is that in older trusts and wills it may be requisite, if not compulsory, to apply the ECHR retrospectively where they purport to apply potentially discriminatory statutory terms. Another minefield to bear in mind when a client comes in claiming to be ‘the only one left in the family’.

Kasia Oberc is a relationship manager at Fraser & Fraser

Copyright & permissions