Section 28(1) of the Adoption of Children Act (Chapter 275) makes the adopted child a child of the adopters for the purpose of all laws. Section 29 works out what that means for property.
Section 28(1) has effect in relation to dispositions of property, whether by will or otherwise, and whenever made, except that it does not affect a disposition of property —
(a) by a person who, or by persons any of whom, died before the commencement date; or
(b) that has taken effect in possession before the commencement date.
Section 1 defines it as the date of commencement of the pre-Independence Adoption of Children Act 1968. Section 1 also defines “disposition of property” to include the grant or exercise of a power of appointment.
Section 29(4) deals with the excluded cases: in relation to a disposition by a person who died before that date, an adoption order has the same effect as if the provisions in force immediately before that date had continued in force and the order had been made under them.
What the adopted child gains and loses
| Source | Position after adoption |
|---|---|
| Adoptive parents — on intestacy or under a will to “my children” | Inherits, as if born to them in lawful wedlock |
| Adoptive grandparents and wider adoptive family | Inherits — s 28(1)(c) determines all relationships on the same basis |
| Birth parents | Does not inherit — s 28(1)(b) ends the relationship |
| Birth family generally | Does not inherit |
The gain of inheritance rights in the adoptive family is matched by their loss in the birth family. That is one of the most substantial consequences of an adoption order, and one reason section 22 requires the consent of a child aged 12 or over.
It is also why section 6(1)(b) matters: a person raised by a family under customary arrangements but never formally adopted may seek an adoption order at any age, precisely so that the legal position matches the reality — frequently for inheritance purposes.
Sections 29(3) and (5) — the limits
Section 28 and this section do not affect the operation of any provision in a will or other instrument — whether made or coming into operation before or after the commencement date — distinguishing between adopted children and children other than adopted children.
Section 29(5) preserves freedom of testamentary disposition. A will that says “to my children other than any adopted child”, or “to my natural issue”, operates according to its terms.
The distinction must appear in the instrument. Where a will simply says “my children”, section 28(1) applies and an adopted child is included.
Where, before the commencement date, a person made a disposition of property by an instrument other than a will; the disposition had not taken effect in possession before that date; and it did not appear from the instrument that it was the intention to include adopted children —
then, notwithstanding that the instrument could not otherwise be revoked or varied, that person may vary it by a like instrument to exclude adopted children (whether adopted under this Act or otherwise) from participation in any right, benefit or privilege.
A person who created an irrevocable settlement before 1969 did so on the law as it then stood. Section 28(1) applies to dispositions whenever made, so it would otherwise bring adopted children into settlements the settlor never contemplated.
Section 29(3) gives the settlor a one-off power to put that right — overriding the irrevocability of the original instrument. It applies only to instruments other than wills (a will can always be changed), only where the disposition had not yet taken effect in possession, and only where the instrument does not already show an intention to include adopted children.
Section 29(2) makes the corresponding point for non-property documents: section 28(1) does not apply to an agreement or instrument (not being a disposition of property) made or executed before the commencement date.
Section 32 — protection for trustees
(1) Trustees or personal representatives may convey, transfer or distribute property to or among the persons appearing to be entitled without having ascertained whether or not an adoption has been effected by virtue of which a person is or is not entitled.
(2) A trustee or personal representative doing so is not liable to a person claiming directly or indirectly by virtue of an adoption unless he has notice of the claim before the conveyance, transfer or distribution.
(3) This section does not prejudice the right of a person to follow property into the hands of a person, other than a purchaser for value, who has received it.
Adoption records are confidential: section 14 requires identifying documents to be sealed and delivered to the Director, section 65 restricts inspection of records, and section 63 forbids revealing identities. An executor cannot search for adoptions that may affect an estate.
Section 32(1) and (2) therefore let trustees distribute on the face of things, and protect them unless they had notice of an adoption-based claim beforehand.
Subsection (3) preserves the beneficiary’s position: they may still follow the property into the hands of whoever wrongly received it, unless that person is a purchaser for value. The trustee is protected; the wrongly-paid recipient is not.
The lesson for anyone with an adoption-based claim is to give the trustee or executor notice in writing, early.
Where the property in question is customary land, a further question arises: rights in customary land are held under custom, and Part VI deals with adoption by custom. Constitution Schedule 2.1 adopts custom as part of the underlying law, subject to inconsistency with a statute and to repugnancy to the general principles of humanity.
Sources
- Adoption of Children Act (Chapter 275) — ss 1, 6, 14, 22, 28–32, 52–58, 63, 65
- Constitution — Sch 2.1
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.