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New Clause—(Rights Of Inheritance Of An Adopted Child)

Volume 466: debated on Friday 24 June 1949

The text on this page has been created from Hansard archive content, it may contain typographical errors.

When an adoption order has been made in respect of any infant by a competent court under the provisions of this Act, or of the principal Act, such infant shall be entitled to the same rights of inheritance under the will of a deceased adopter (whether such will was made before or after the making of the adoption order) as would be possessed by a legitimate child of the adopter.—[ Mr. Parker.]

Brought up, and read the First time.

11.12 a.m.

I beg to move, "That the Clause be read a Second time."

In Committee this new Clause and an Amendment to it by my hon. Friend the Member for East Bradford (Mr. McLeavy) were put down and discussed, and after debate there was a very close vote, the new Clause and the Amendment being defeated by 10 votes to nine. That Debate raised some important points which I think would be generally accepted on all sides of the House. It was pointed out that grandparents or relatives of an adopting parent might make wills without having regard to the fact that a child might be adopted, and the wishes expressed in the will might be set on one side. A man, while deciding to leave property to his grandchildren, might not specify in his will who they were, and his son might add to the number of grandchildren by adopting a child, and the wishes of the grandparent when originally making the will might possibly be set aside.

The case made out for the undesirability of trying to control wills made by people other than the adopting parents was quite reasonable, and I introduce this new Clause in order to try to limit the control of wills of adopting parents while excluding all attempts to control the making of wills by grandparents or other relatives of the adopting parents. There is a very strong case for this new Clause in its attempt to govern wills made by adopting parents. Under the Bill as now amended, if an adopting parent dies intestate all his children, both natural and adopted, benefit equally from the division of his estate. But an adopting parent might well decide to make a will leaving his property "to my children," and I am advised by competent authorities that there is no guarantee that the phrase "to my children" would necessarily be interpreted in the courts to include adopted children.

11.15 a.m.

That might lead to considerable grievance and unfairness. The property of a person who has not made a will might be divided among his natural and adopted children equally, while on the other hand-another person, possibly hoping to safeguard his adopted child, might say in his will, "I leave my property to my children," without specifying them by name, and without saying "my adopted and my natural children," with the result that the courts may rule that the phrase "my children" referred only to the natural children and excluded the adopted child. The position is not certain, and it is undesirable that a matter of this kind should be left open for a decision in the courts; this House ought to make its views on the matter quite clear.

This new Clause is intended to ensure that when an adopting parent makes a will leaving his property "to my children" the adopted child as well as the natural children is included. It would be unfair to leave the position so that if he dies intestate the adopted child is included, whereas if he makes a will leaving his property "to my children" the courts might interpret that as excluding the adopted child. Indeed, the adopting parent, hoping to safeguard the position of the adopted child, might in making a will damage the adopted child's interests; the adopted child might be in a much better position had the will not been made. I therefore press for acceptance of this new Clause.

When this matter was discussed in Committee the Under-Secretary for the Home Department pointed out that there was a very strong case for including a provision of this kind to govern the making of wills so far as adopted children were concerned. He then made a strong case against the other parts of an Amendment which sought to control wills made by grandparents and other relatives. A case was made out to exclude any attempt to govern wills made by grandparents or other relatives of the adopting parents, but there is a strong case for ensuring that the adopted child should be in exactly the same position as the natural child in the wills of adopting parents. The whole of this Bill is designed, as far as possible, to try to see that an adopted child is in exactly the same position as the natural children of the adopting parent, and it would be unfortunate if in this regard an exception were made to that general rule.

I beg to second the Motion.

There is very little to add to my hon. Friend's extremely lucid explanation of this fairly simple new Clause. Throughout the Second Reading and the Committee stage our object has been to equalise, as far as possible, the status of the adopted child and the natural child. Although the question of inheritance was admitted to present very great difficulties—such immense legal difficulties, that we have all agreed to let it lapse in part, and to refrain from the attempt to make a complete parallel between adopted and natural children—in the new Clause proposed by the Under-Secretary at least an advance is made in respect of intestates. But this new Clause which we are now discussing takes a further step, which I believe does not run us into any serious legal difficulties or complexities.

We have here, roughly speaking, the difference between contracting-in and contracting-out. If an adopting parent wishes to leave his money or his estate equally between his children, one of whom is adopted and the rest natural, instead of having to specify each child by name, including the adopted child, before that adopted child is able to receive its share, under this new Clause that will happen automatically unless the adopted child is deliberately and specifically excluded in the terms of the will. I should have thought that was an advance. It will avoid the possibilities of litigation which might leave the adopted child at an undesired disadvantage.

When this Bill was originally drafted, it contained no provisions relating to the question of succession. When I moved the Second Reading, I expressed the hope that later on we might be able to achieve something in this direction. In consequence, the Committee agreed to the insertion of Clause 9, which puts the adopted child in the position of a natural child in the event of intestacy. It is to be noted that the Clause is a two-way Clause. In other words, if the adopting person dies intestate the adopted child is to share equally with the natural child, and if the adopted child dies intestate the adopting parent is to benefit from the child's estate. I felt that that was the best I could do. I am by no means anxious to appear hostile to this new Clause. My difficulty is as to its feasibility and whether it will work, and I am very much afraid that in its present form it will not work.

I take the view that if we are to have this system of placing the adopted child in the position of a natural child so far as wills and settlements are concerned, there must be certain principles adhered to, of which there are three. The first is that if an adopted child is to be deemed a natural child for the purposes of succession, it must be severed from its obligations, duties and rights in regard to its real parents. In other words, we desire to remove the adopted child from one family to the other—it cannot have two families. The second is that we must have a two-way system; that the child's estate must be considered as well as the adopting parent's estate. Thirdly, the House would be quite wrong, I submit, to seek to interfere with wills and settlements made before this Bill becomes an Act.

I ask the House to take the view that the new Clause offends against some of these principles. For example, the new Clause is expressly made applicable to a will executed before the date of the Bill, which I cannot think is right. With important steps, such as marriage, testamentary arrangements are automatically ended, and the adoption of a child is also an important step. I suggest that the retrospective part of this new Clause is very difficult to defend.

In the case of a testament lapsing owing to marriage, if no will is made to supersede the one already in existence, does that mean that the testator thereafter ranks as intestate?

I should say that he does. That is the situation where testamentary dispositions lapse, but here they do not automatically lapse unless the Bill says so. The law has decided that on marriage a testamentary disposition comes to an end. I could not possibly recommend the House to adopt this provision which affects dispositions already made.

The new Clause also fails to cover the case of a testator who has already died and left his property to his widow for life and thereafter to such of his children as survive the widow, which is a very common form of devise. The position is not clear whether the adopted child is to be regarded as one of his children. Further, the new Clause ignores the problem of the will of the natural relative of an adopted person. That is going, back to one of my earlier points, that if the child is to benefit from one family it ought not to benefit from the other.

In these circumstances, I ask the House to resist this new Clause, or at least I express the hope that it will not be pressed. I am well aware that when this Measure goes to another place it will have distinguished sponsors, and I have no doubt that this aspect of the matter will receive very careful consideration. The House should be careful to see that something is not included in a Bill which will not work. I suggest that proper representations should be made elsewhere when the Bill reaches another place.

11.30 a.m.

I should like briefly to support what has been said by my hon. Friend the Member for Dagenham (Mr. Parker) in moving the Clause. From the point of view of the Government the intention of the Clause is quite acceptable but although, as my hon. Friend the Member for Eton and Slough (Mr. Levy) said, it may be a fairly simple Clause, the situation with which we have to deal is by no means simple. The hon. and learned Member for Chester (Mr. Nield) has already made it quite clear that the Clause as drafted has so many defects that we should be quite wrong to pass it today and then ask another place to put it into shape. That may be a suitable course when we are concerned with only minor Amendments, but when so many major aspects of this problem are not covered by the Clause the Government would not wish the House to pass the Clause and leave another place to put it right.

On the other hand, we sympathise with the object of putting the adopted child in the same position as the natural child, so far as that can be done, and while I cannot assure the House that we shall necessarily succeed in making the Clause watertight, we shall be willing to co-operate with those who will be sponsoring the Bill in another place in trying to find a formula which will meet the objective of my hon. Friend the Member for Dagenham. The only detailed point I need add to what the hon. and learned Member for Chester has said is that the Clause as it stands will apply to Scotland, whereas we know that the Scots have special problems in this respect. However, as I have said, we shall do our best, when the Bill comes before another place, to assist and, that being so, I hope the Clause will not be pressed.

I should like to thank the hon. and learned Member for Chester (Mr. Nield) and my hon. Friend the Under-Secretary for the way in which they have received our representations on this Clause. All the points which have been raised are important and ought to be dealt with in trying to solve this problem. It is particularly desirable that any provisions covering questions of wills of adopting parents leaving property to their children, adopted or otherwise, should be on the same lines as those with regard to the Clause dealing with intestacy. While doing this job we should try to do it properly and put the adopted child in the same position, if possible, as the natural child. However, I am prepared to withdraw the Clause and, with my hon. Friends, to collaborate with the hon. and learned Member for Chester and the Home Office in trying to ensure that Members in another place will be able to deal satisfactorily with all the points which have been raised this morning. I beg to ask leave to withdraw the Motion.

Motion and Clause, by leave, withdrawn.