In the recent case of Coulson v Paul the court considered whether Emma Coulson could inherit from the estate of her biological grandfather, Allan Paul, despite having been adopted.
Allan Paul died in 2021, leaving a Will that dated back to 2012. Allan had two sons: John and Ronald. Allan’s Will left his entire estate to John, with a provision that if John predeceased him (i.e. if John died first), the estate should pass to John’s “child or children”. Sadly, John did die before his father.
John had only one biological child, Emma (the claimant in this case). Emma had been adopted by her mother’s new husband at a young age but had rebuilt a relationship with her biological father and grandfather in later years. There was evidence that Emma was viewed by her biological father as his child, and he referred to her as his daughter in his own Will.
However, section 67 of the Adoption and Children Act 2002 provides that an adopted child is to be treated in law as the child of their adopted parent, not their biological parent. In legal terms, Emma was not John’s child after the adoption took place. This meant that Emma did not fall within the definition of John’s “child or children” in her grandfather’s Will, so could not inherit from his estate.
Emma argued that her grandfather’s will should be interpreted so that she was included in the reference to John’s “child or children”, or alternatively that the Will should be rectified.
Section 21 of the Administration of Justice Act 1982 allows the court to look at extrinsic evidence to interpret a Will where any part of it is meaningless or ambiguous. Extrinsic evidence will be any evidence of the testator’s intentions apart from the will itself. In this case the court found that the words “child or children” were not meaningless or ambiguous on the face of it, but could be considered ambiguous given the family circumstances. Extrinsic evidence was therefore allowed.
The extrinsic evidence relied on was Emma’s relationship with her biological father and grandfather, the fact that John referred to Emma as his daughter in his own Will, and the fact that John had no other children and was unlikely to have further children. It was also relevant that Allan had expressed that he did not want his other son to benefit from his estate, and this would be the outcome if Emma could not inherit in place of her father.
Ultimately, the court decided that there was insufficient evidence to find that Allan viewed Emma as John’s child. Emma did not fall within the definition of John’s “child or children”, so could not inherit from the estate of her biological grandfather. The court also found that the test for rectification of the will was not met. For an explanation of the test for rectification, see our blog “rectification and construction – what happens when a will doesn’t make sense?”.
The uncertainty in this case could have been avoided if Emma was named in Allan’s Will. Whilst an adopted child will legally be treated as the child of their adoptive parents, and not their biological parents, this does not stop a parent (or grandparent) from choosing to benefit their biological child (or grandchild) in their Will.
If you have a biological child who has been adopted by somebody else and you want them to inherit from your estate when you die, it is essential to make a clear Will. If you do not make a Will, then your child will not be recognised under the intestacy rules (which govern how estates are distributed when somebody dies without a will). When making a Will you should include your child by name, so that there is no ambiguity.
If you have a biological child who has been adopted by somebody else and you do not want them to inherit from your estate when you die, there are still things to consider. As this case highlighted, the wording used in wills can be ambiguous, so it is important that your will makes clear that no provision is being made for your biological child. There is also a possibility that your child could have a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975 if you maintained them (i.e. by providing them with financial support), or if you treated them as your child.
If you have any concerns or questions about this topic please get in touch, and a member of our private wealth disputes team will be happy to speak with you.