HC Deb 19 February 1964 vol 689 cc1295-8
Mr. Millan

I beg to move, in page 17, line 5, to leave out subsection (4).

This Clause deals with the rights of adopted persons, and its purpose is to provide that an adopted child shall have the same rights in the estate of the parents as a natural child. We all welcome the Government's intention.

As the Bill is drafted, any will which is drawn up after the Bill becomes an Act will include an adopted child as a natural child even if the adoption took place after the date of the will. In other words, once an adoption order has been made, and if the parent has previously made a will, any reference in it to his children will include the adopted child. Therefore, the provisions of the will will be altered to some extent even if the adoption was made some time before. That is the general principle, and we accept it because an adopting person would not be asked to make a new will simply because he adopted a child. This seems very reasonable.

However, subsection (4) explicitly excludes any will executed before the commencement of the Bill's operation. Therefore, there may arise certain anomalies, because even if the child had been adopted before the will was made, and provided the will was made before the passing of the Bill, the adopted child will not come in. This seems anomalous. In one case, provided the will was made after the Bill had come into operation, even if the adoption takes place after the will was made, the adopted child will come in, but in another case, simply because the will was made before the passing of the Bill, it will not include the adopted child even if adoption took place before the will was made. The Amendment has been tabled to avoid this anomalous position.

The Amendment, so far as it relates to deeds executed before the Bill comes into operation, will have the effect of placing the adopted child in exactly the same position as a natural child regardless of the date of the will. Any reference in a will to the children of the person making the will will be taken to include an adopted child. When this point was raised in Committee, the Under-Secretary of State turned down the Amendment because there might be cases in which the person concerned had died before the commencement of the Act, although the relevant provisions of the will had not yet taken effect because there were special dispositions of the property from one person to another, some of which might take place after the commencement of the Act. There may be special cases of that kind and we do not wish to create special difficulties in respect of them. But they are exceptions. If the Amendment were accepted, we should be dealing in most cases with people who had made wills before the commencement of the Act and who are alive at the date of commencement because under subsection (2) deeds are taken as having been executed on the date of the death of the person concerned. Therefore, in the vast majority of cases the difficulty which the noble Lady mentioned in Committee will not arise.

I ask the Government to look at this matter again. I accept that if the Amendment were accepted as it stands we would, perhaps, create more difficulties than might arise under the Bill as it is drafted. But it should be possible for the Government to deal with the exceptional cases described in Committee and yet allow in the generality of cases for the kind of results about which I have been arguing. I therefore hope that the Government will not turn the Amendment down out of hand, but will consider it and see whether the Clause can be so drafted that all cases are taken into account so that we do not have this anomaly which arises from whether or not the will was drawn up before the Bill became operative.

8.30 p.m.

Lady Tweedsmuir

The hon. Member for Glasgow, Craigton (Mr. Millan) has recognised that if this Amendment were accepted as it stands it might have some unfortunate results because subsection (4) provides that Clause 23 is not to affect any deed executed, or the devolution of any property on, or in consequence of, the death of a person who dies, before the commencement of this Act. The Amendment would leave out the subsection and it would have two main effects. The first effect would be that a deed would be interpreted as if "children" included adopted children, even if the deed had been executed before the Act. In other words, such deeds would be interpreted in a way which could not be foreseen by the person who executed the deed. That would be retrospective legislation.

The second effect would be that the estates of persons already dead might have to be reopened if any question arose of succession by or through the adopted person. The trouble is that such a question could arise at any time when the estate was wound up, and this would also be retrospective legislation. For these two reasons, I could not possibly accept the Amendment as it stands.

The hon. Member gave various examples and asked if it would be possible to give consideration to trying to cover the difficulties which he mentioned. This has been gone into since the Committee stage, but I think it is a case of having to tell the hon. Member again that the more we go into this Bill the mare it raises the problem of individual hard cases and it is impossible to cover them. Therefore, I could not possibly give him that undertaking.

Mr. Millan

The Clause as drawn is already retrospective. Is it not the case that where after the commencement of the Act, a person has drawn up a will and subsequently adopted another child his will will be taken to refer to the adopted child? At the date when he made the will he may have had no intention of adapting a child. Surely that is retrospective in just the same way as if this Amendment were accepted. That cannot be an objection to it.

Lady Tweedsmuir

I think that I made it quite clear that the deed would be [...] as if "children" included adopted children even if the deed had been [...]before the Act.

Amendment negatived.