(Provision for Family and Dependants 1975)

When someone dies, their money, property, and possessions (their ‘estate’) are usually distributed according to their will or, if there is no will, under the rules of intestacy. However, in some cases, the law allows certain people to challenge the distribution if they have been left out unfairly or not properly provided for. This is done by bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975, often referred to simply as ‘the 1975 Act’.

Among the categories of eligible claimants are children of the deceased and a common question that arises from this is whether this definition includes legally adopted children. This articles explores this question and outlines what legally adopted children (and their families) should be aware of.

What does the 1975 Act do?

The 1975 Act allows certain people the right to apply to the courts for reasonable financial provision from a deceased person’s estate in the event that they believe that the deceased’s will (or intestacy) has failed to provide for them in a way that is fair and appropriate for their needs.

In order to bring a claim a person must fall into one of the categories listed in section 1(1) of the 1975 Act, these are: 

• The spouse or civil partner of the deceased.
• A former spouse or former civil partner of the deceased, but not one who has remarried or entered a new civil partnership.
• A child of the deceased.
• Any person treated by the deceased as a child of the family (for example, a stepchild).
• Any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.

This article focuses on group (c) (‘child of the deceased’), and whether this includes children who were legally adopted by the deceased.

Are legally adopted children considered ‘children’ under the law?

The simple answer is yes. Section 67 of the Adoption and Children Act 2002 provides that an adopted child is to be treated in law as if they were born to their adoptive parents, and no longer the child of their birth parents (except in very limited circumstances). This legal severing means that a child who has been legally adopted is considered the legal child of their adoptive parents for almost all purposes, including inheritance.

This is mirrored in the 1975 Act which does not limit the term ‘child’ to biological offspring. Courts have interpreted this term to therefore include any person who is a child of the deceased under the ordinary meaning of that relationship, which, under the law, includes legally adopted children. This means that, for the purposes of the 1975 Act, a legally adopted child is to be treated exactly the same as a biological child of the adoptive parent who had died.

What does the court consider when a child makes a claim?

Whilst being legally adopted qualifies a child to bring a claim under the 1975 Act, it does not mean the court will automatically award them money from the estate of the deceased.

The court will consider several factors under section 3 of the 1975 Act, including:

• The financial resources and needs which the applicant currently has or is likely to have in the foreseeable future.
• The financial resources and needs which any other applicant or beneficiary of the deceased’s estate currently has or is likely to have in the foreseeable future.
• Any obligations and responsibilities which the deceased had towards any applicant or beneficiary of their estate.
• The size and nature of the net estate of the deceased.
• Any physical or mental disability of any applicant or beneficiary of the deceased’s estate.
• Any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

This means that even if a child is legally adopted, the court will look at their specific relationship with the deceased, the financial situation of the child, and what the deceased could reasonably have been expected to provide.

What effect does legal adoption have on a child making a claim against their birth parents’ estates?

An important point to be aware of is that once a child has been legally adopted by their new parents, they are no longer legally the child of their birth parents and so lose their legal right to bring a claim against their birth parents’ estates as a ‘child of the deceased’ under the 1975 Act.

However, this does not mean there are no options for legally adopted children to bring a claim against their birth parents’ estates. They may still qualify to bring a claim under different section of the 1975 Act, specifically:

• If the deceased birth parent treated the child as a child of the family after they had been legally adopted (Section 1(1)(d)).
• If the deceased birth parent, immediately before their death was maintaining, either wholly or partly, the child (Section 1(1)(e)).

These types of claims are far more fact-specific and are often harder to prove than a claim as a ‘child of the deceased’, and so it is important to get legal advice early if you are considering bring a claim under either of these sections.

How long do you have to bring a claim under the 1975 Act?

The deadline for bringing a claim under the 1975 Act is usually within six months of the date of the grant of probate (or letters of administration if there is no will and it is an intestacy). In very limited circumstances, the court may allow a claim outside of this time, but this shouldn’t be relied on and it is much safer to bring your claim as soon as far in advance of the deadline as possible.

Key takeaways

• Legally adopted children do qualify to bring a claim under the 1975 Act against their adoptive parent’s estate if it does not reasonably provide for them.
• Legally adopted children are treated the same as biological children under the law.
• Legally adopted children cannot bring a claim against their birth parents’ estates, unless they qualify under a different section of the 1975 Act.
• Whether a claim is successful will depend on a range of factors, not just the legal relationship between child and parent.

How we can help

If you are a legally adopted child that would like to bring a claim under the 1975 Act, or you’re an executor or beneficiary dealing with a potential claim, please do not hesitate to get in contact with our expert inheritance dispute solicitors today who will be able to help you navigate these complex and time-sensitive legal disputes.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.