NZLII [Home] [Databases] [WorldLII] [Search] [Feedback]

New Zealand Law Commission

You are here:  NZLII >> Databases >> New Zealand Law Commission >> >> PP38 >> 10. Succession

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]


10. Succession

INSTRUMENTS PRE-DATING THE ADOPTION ORDER

270 SECTION 16(2)(d) OF THE ADOPTION ACT provides that:

The foregoing provisions of this subsection shall not apply for the purposes of any deed, instrument, will or intestacy, or affect any vested or contingent right of the adopted child or any other person under any deed, instrument, will, or intestacy, where the adoption order is made after the death of the testator or intestate, as the case may be, unless in the case of a deed, instrument, or will, express provision is made to that effect.

271 In plain English, this provides that where the death of the testator or intestate occurs before the adoption order is made, the adoption will have no effect on rights of succession unless there is an express provision made to the contrary. A provision in a trust deed or will for grandchildren will not benefit grandchildren adopted after the date of the deed or after the death of the will-maker.

Succession from natural relatives

272 This provision means that an adopted child is able to succeed a natural relative if the adoption order was made after the death of the testator or intestate natural relative.[307] This is subject to some consideration of subsequent events.[308] However, where the intestacy occurs after the adoption order, the adopted child is not entitled to inherit from birth parents or relatives.[309] Where there exists a deed, instrument or will, the adopted child may inherit if there is express provision. A gift to a class of persons (a class gift), to be determined at the date of the testator’s death, will not include the adopted child if the child was adopted before the death, even if the provision was made before the adoption order.[310]

273 An example is Re Walker where the natural grandmother left a class gift to her children with a substitutionary gift to the issue of any child who predeceased her. The grandmother’s son predeceased her, leaving a daughter. However, two years later the daughter was adopted by her mother and her new stepfather. The effect was to deprive her of succession rights under the grandmother’s will.

Succession from adoptive relatives

274 Section 16(2)(d) provides that an adopted child is not considered a “child” of the adopted relatives where an adoption order is made after the death of the testator or intestate, unless express provision is made to that effect. This is unproblematic – at law an adopted child is not considered to be a child of the adopted parent until the adoption order is made. If the future adoptive parents wish to provide differently before the adoption order is made, they are able to do so in a will.

SUCCESSION AFTER THE ADOPTION ORDER

275 After the adoption order is made, the adopted child is entitled to inherit from the adopted parents as if it were a natural child, but is deemed to no longer be the child of the birth parents.

276 An option that might be considered is whether the adopted person should be entitled to inherit from both sets of relatives if those relatives die intestate. This is currently provided for whängai (Mäori customary adoptions) in relation to Mäori freehold land.[311] This could be said to be consistent with the new approach to adoption set out at the start of the paper – that natural relatives should not be ‘expunged’ from the legal record of an adopted child’s life. If the relatives did not wish the adopted child to inherit, they could provide differently by will. Such a course would expose the estate to Family Protection Act claims by natural children.

277 We might consider reversing the result in Re Walker by providing for wills to speak from the date of execution rather than from the date of the death on the issue of the status of a natural descendent of a testator who is later adopted. This might adversely impact on the adoptee’s interests.

278 Yet another option would be to create a presumption that all gifts to classes of persons be construed as including children adopted into that family.

Should an adopted person be entitled to inherit from both natural and adoptive relatives?

Should the principle in Re Walker be altered?

Should class gifts be interpreted as including children adopted into the family?

279 In accordance with the philosophy that biological parents relinquish parental rights and responsibilities, the biological parents should not be entitled to inherit from the adopted child if that child dies intestate.

280 Problems could arise if the natural relatives are not aware of the existence of an adopted-out child. They cannot consciously exclude the succession rights of a child of whose existence they are unaware. Although such a situation is likely to be increasingly rare in light of current adoption practices, it is not inconceivable. Legislation could provide to the effect that if the natural relatives are unaware of the adopted child’s existence, then that child shall not be entitled to inherit on intestacy.

Should the adopted child have a right to inherit on the intestacy of a natural relative where the intestate was unaware of the child’s existence?


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/other/nzlc/report/PP38/PP38-10_.html