Hardy v Hardy and another [2013] EWHC 83 (Ch); [2013] All ER (D) 214 (Jan)

Area of law:

3 January 2013

Oliver successfully appeared on behalf of the claimant in the first claim to consider the effect of s. 67 Adoption and Children Act 2002 and the construction of a will.

The section provides that where a person has been adopted then they are treated in law as the legitimate child of the adoptive parents, and therefore not of their natural parents. In this case, the claimant had been adopted at a young age but an issue of construction of his natural father’s will arose, whereby the residue of his estate was to be divided equally between “my children”. The description of “my children” in the claimant’s natural father’s will thus excluded the claimant, unless there was evidence of a contrary intention. The judge – Mr Kevin Prosser QC sitting as a Deputy High Court Judge – found that such a contrary intention did exist since the testator had referred to the claimant as “my son” in another part of the will and again in the codicil. Accordingly, on the true construction of the will, notwithstanding his adoption, the claimant was to be included within the phrase “my children” and so entitled to share in the residue of the estate. The claimant was also entitled to orders relating to the administration of the estate, and recovered his costs in full from the Deceased’s estate.