WILLS: CHILDREN: SUCCESSION: ILLEGITIMATE CHILD DID NOT INHERIT AS AMENDING LAW NOT RETROSPECTIVE: BEQUESTS: DISCRIMINATION: OUT OF WEDLOCK: GRANDCHILDREN: HUMAN RIGHTS ACT 1998: PROTOCOL 1 ART.1 EUROPEAN CONVENTION ON HUMAN RIGHTS 1950: ART.8 EUROPEAN CONVENTION OF HUMAN RIGHTS 1950: ART.14 EUROPEAN CONVENTION ON HUMAN RIGHTS 1950: S.19 FAMILY LAW REFORM ACT 1987: S.39 ADOPTION ACT 1976: EUROPEAN CONVENTION ON HUMAN RIGHTS 1950.

An illegitimate child, later adopted by his father, could not, under the terms of his grandfather’s will made in 1930, inherit his father’s share under the will as a “child” of his father, as legislation removing discrimination on the grounds of illegitimacy or adoption was not retrospective and, on the facts, the Human Rights Act 1998 could not apply.

The claimant (C) claimed his father’s estate from the executors (N) who disputed his right to inherit. Under the trusts of his will made in 1930, a grandfather left three-fifths of his estate to his son (T), who in turn purported to leave it in his will to his illegitimate son (C), whom he had adopted in his infancy. N would not honour T’s bequest on the grounds that C was illegitimate and therefore could not inherit as a “child” of T. Further that subsequent adoption law did not support C’s case as the will was made in 1930. C refuted N’s case but contended that, even if that was correct, he could claim by reason of the Human Rights Act 1998 and relied on the European Convention on Human Rights 1950 Protocol 1 Art.1, Art.8 and Art.14.

HELD: (1) The reference to “child” in the grandfather’s will was a reference to legitimate children. Such references was construed as such unless there was a contrary intention in the will: Re Brinkley [1967] 3 AER 807 followed. Under the Family Law Reform Act 1987 s.19(1)(b), dispositions by will were to be construed in accordance with s.1 of the 1987 Act, whereby references to any relationship between two persons were, in the absence of a contrary intention, to be construed without regard to whether the father and mother were married. However, the Act only covered wills made after it came into force in 1988. Similarly the Adoption Act 1976 s.39, which in principle would assist C, was not applicable to instruments existing before 1976. (2) The European Convention on Human Rights 1950 did not assist C. Article 1 of Protocol 1 of the Convention protected possessions but C had never possessed the disputed share of his grandfather’s will. The amending legislation had removed the discrimination on grounds of adoption or illegitimacy but was not retrospective. The disputed share would pass to T’s brother.

Judgment for defendant.

Timothy Everard Upton v (1) National Westminster Bank Plc (2) Richard Tichborne Everard Upton (3) Rosalie Jane Prior (2004)

Ch D (Leeds) (Judge Behrens) 9/8/2004

“Lawtel”; 16.08.04