PART 1Adoption

CHAPTER 4Status of adopted children

68Rules of interpretation for instruments concerning property

1

The rules of interpretation contained in this section apply (subject to any contrary indication and to Schedule 4) to any instrument so far as it contains a disposition of property.

2

In applying section 66(1) and (2) to a disposition which depends on the date of birth of a child or children of the adoptive parent or parents, the disposition is to be interpreted as if—

a

the adopted person had been born on the date of adoption;

b

two or more people adopted on the same date had been born on that date in the order of their actual births;

but this does not affect any reference to a person’s age.

3

Examples of phrases in wills on which subsection (2) can operate are—

  1. 1

    Children of A “living at my death or born afterwards”.

  2. 2

    Children of A “living at my death or born afterwards before any one of such children for the time being in existence attains a vested interest and who attain the age of 21 years”.

  3. 3

    As in example 1 or 2, but referring to grandchildren of A instead of children of A.

  4. 4

    A for life “until A has a child”, and then to A’s child or children.

Note. Subsection (2) will not affect the reference to the age of 21 years in example 2.

4

Section 66(3) does not prejudice—

a

any qualifying interest;

b

any interest expectant (whether immediately nor not) upon a qualifying interest; or

c

any contingent interest (other than a contingent interest in remainder) which the adopted person has immediately before the adoption in the estate of a deceased parent, whether testate or intestate.

“Qualifying interest” means an interest vested in possession in the adopted person before the adoption.

5

Where it is necessary to determine for the purposes of a disposition of property effected by an instrument whether a woman can have a child—

a

it must be presumed that once a woman has attained the age of 55 years she will not adopt a person after execution of the instrument; and

b

if she does so, then (in spite of section 66) that person is not to be treated as her child or (if she does so as one of a couple) as the child of the other one of the couple for the purposes of the instrument.

6

In this section, “instrument” includes a private Act settling property, but not any other statutory provision.

7

This section does not apply to a statutory provision or other instrument passed or made before 1st October 1989.