Hardy v Hardy & Anor

Where legislation provides that an adopted person is not to be treated as the child of a natural parent, that rule applies to earlier wills unless the instrument contains a contrary indication. Clear descriptions in the will and a codicil referring to the adopted person as the testator’s son may constitute such an indication. The court must construe the testamentary instrument as a whole. A later codicil appointing different trustees does not necessarily remove or neutralise an earlier description which provides the contrary indication.

This Part 8 claim concerned the construction of Alfred Hardy’s will dated 17 February 1984 and codicil dated 24 March 2002. Alfred’s natural children were Benjamin, David and Andrew. Benjamin had been adopted by his natural mother and Alfred’s brother. The issue was whether, having regard to section 67 of the Adoption and Children Act 2002, Benjamin was included in the will’s gift of residue to Alfred’s children. Benjamin also sought information concerning the administration of the estate and orders relating to costs.

1. Construction of the gift. Section 67(1) and (3) of the Adoption and Children Act 2002 required Benjamin to be treated as the child of his adopters and as not being the child of any other person. By section 67(6), that rule applied to instruments made before the adoption, subject to any contrary indication.
2. The descriptions of Benjamin and Andrew in clause 1 of the will as Alfred’s “sons” were a very clear contrary indication. The same description was repeated in the recital to the codicil. Those provisions showed that Alfred intended Benjamin to be treated as his child for the purposes of the residuary gift in clause 4.
3. The codicil’s appointment of David in place of Andrew and Benjamin, and its direction that the will be construed as if David had originally been appointed, did not require the will to be read as though the earlier description of Benjamin as a son had never occurred. Had Alfred intended that result, he would not have repeated the description in the codicil.
4. Accordingly, “my children” in clause 4 included Benjamin. The court declared that Benjamin was one of Alfred’s children and entitled to one third of the residuary estate. It was unnecessary to decide whether extrinsic evidence of surrounding circumstances was admissible.
5. David was ordered to provide within four weeks a full inventory and estate accounts showing how the estate had been administered and invested since 2006, including details of a £12,000 loan, the amount available for distribution and Benjamin’s share. No order for payment into court was made at that stage.
6. The court declined immediately to order the defendants personally to pay Benjamin’s costs because the application had not been clearly identified and they were unrepresented. Subject to a properly supported application, Benjamin’s reasonable costs of £29,630.09 were ordered to be paid out of the estate on the standard basis.

Not stated in the judgment.