In the current climate, the role of a trusted advisor, trustee or a personal representative can prove tricky for many reasons. Societal changes, particularly over the last 30 years, make our families and those we work with more varied, interesting, and, in general, more accepting of difference than used to be the case. However, are our succession laws keeping up with such changes?
Sadly, not always. The question of who may be treated as a child in the context of succession to a family's wealth can be complex.
English law defines children as ‘the first generation of legitimate descendants'. This definition dates from an 18th century judgment in the matter of Goodwyn v Goodwyn. Luckily, we have moved on since the 18th century.
Adopted and illegitimate children
Under the terms of the Adoption Act 1976, an adopted child is treated in law and for the purposes of construction of instruments as if he or she had been a child of the marriage. The Family Law Reform Act 1987 dealt with the issue of illegitimacy in a similar way. However, transitional provisions in both acts restrict their applicability to instruments made on or after they came into force, i.e. 1976 and 1987 respectively.
The 2017 judgment in the matter of Hand v George and the 2019 judgment in the matter of Re Druce’s Settlement 1959 strongly suggest that courts will do their best to interpret pre-1976 rules in accordance with 21st century standards, where possible. However, in my view, both cases were quite fact specific. The decision in Re Druce’s Settlement 1959 was made in the context of an unopposed application. In Hand v George, the beneficiaries who argued that adopted grandchildren ought not to be entitled to benefit under the pre-1976 instrument, had no vested (i.e. defined and certain) interest in the trust fund. There is no guarantee, therefore, that a dispute over the entitlement of children who were adopted or born to unmarried partners, under a pre-1976 or 1987 trust or will might not be decided differently in the future.
Step-children
The definition of step-children brings the inability of our laws to keep up with societal changes into even sharper focus. While second relationships and patchwork families are common nowadays, in English law "step-children" are as mythical as the "common law spouse". A step-child is not classed as a step-parent's child under general law, unless the step-parent has adopted the child. A step-child will, therefore, not inherit on an intestacy. A will or trust may include step-children within the definition of children, but otherwise, unless they are named expressly, they will be excluded from benefit.
Children born by way of assisted reproduction
The complexity increases when we consider the issue of the entitlement to succession of children born through assisted reproductive techniques.
The Human Fertilisation and Embryology Act 2008 (the 2008 Act) provides that for those applying for treatment after 6 April 2009, the mother of a baby conceived by way of assisted reproduction is the woman carrying the child. The father of the child will be the woman's husband, whether or not his sperm was used, unless he did not consent to the treatment.
In the case of a same-sex marriage or civil partnership, the woman carrying a baby will be regarded as the baby's mother. Her spouse or civil partner will be the baby's other parent, unless they did not consent to the treatment. However, if the woman carrying the baby is not married or in a civil partnership, her partner will not be the second parent unless both consent in writing before the treatment commences.
Similarly, a single woman undergoing treatment will be treated as the only parent of the child. If a donation was made at a UK licensed clinic, the sperm donor will have no parental right. In other cases, the position may be less clear. An example would be an altruistic father who undergoes fertility treatment in a UK clinic with his partner. The couple decide to have only one child and, therefore, donate the other embryos created during treatment to single women, undergoing treatment in the same, or another, UK clinic. The mother giving birth to the child will be the child's mother. However, will her child potentially have a claim in the future to the wealth of the donor father, as he consented to the treatment? Under English law as it stands, the answer is not clear.
Surrogacy
Under the 2008 Act, a woman who acts as a surrogate is the legal mother of a child to whom she gives birth until a parental or adoption order is made. This is the case even with gestational surrogacy, where the baby has no genetic link to the surrogate. The surrogate's husband or civil partner will be regarded as the father of the child. The intended father will be treated as the legal father of the child only in the unlikely scenario that the child was conceived as a result of sexual intercourse, or if the surrogate is not married, or her husband or civil partner did not agree to the insemination or treatment.
Within this context, the position is even more complex for a same sex couple. For male couples, in order for one of the couple to be treated as the legal father of a baby without a parental order, the woman acting as their surrogate would need to be single. For female couples, none of the partners or spouses will be the child's legal parent at birth.
While paternity may be transferred relatively quickly through a parental order, such orders may not be issued to single persons, or to either member of a couple if neither share a genetic link to the baby. In my example above, only the parent who provided the sperm could obtain a parental order and even then, only on the condition that the couple were married or civil partners.
An application for a parental order must be made within 6 months of birth, and the child must be living with the couple. The woman acting as surrogate and her spouse or civil partner must also consent, and the court must be satisfied that no payment was made for the surrogacy. These requirements add a further layer of complexity and exclude many international surrogacy arrangements.
Where a parental order cannot be made, an adoption order is an alternative. The process is much longer, involving scrutiny by the local authority, social services department and other parties. In the case of international adoptions, a specific procedure, which includes approval from the local authority, has to be followed.
Due to the complexities of attaining a parental or adoption order, parents may choose to apply for a child arrangement order. However, while such an order gives the intended parents parental responsibility, it does not reassign legal parenthood for the purposes of succession. As such, unless parents ensure that their wills and trusts are drafted carefully to include them, a child in this situation may find that they are unable to inherit their parents' estates or benefit from a family trust.
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