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
Children of A “living at my death or born afterwards”.
- 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
As in example 1 or 2, but referring to grandchildren of A instead of children of A.
- 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.