Wording in a will (re adoption)

[arthurk]

I've recently been looking at a number of 20th century wills, and am wondering if a particular wording in one of them could be significant.

Mostly when the testators are detailing instructions for their residual estate they name sons, daughters, nephews, nieces etc, adding something to the effect that should any of the residuary beneficiaries predecease the testator, their share is to be divided among their surviving issue. However, in one of these wills (written 1954) the reference to the surviving issue has the added phrase (in brackets):

"which term shall include adopted children".

Our research into the residuary beneficiaries of this particular will suggests that one of them may have adopted one or more children. So is the added phrase about adopted children good evidence for this, or was it merely a standard form of words used at the time to cover all possible circumstances, even though it might not have applied at the time the will was written?

Thanks,
Arthur

[Currie]

Hello Arthur,

“In Scotland, a deceased's spouse or civil partner have rights to his or her estate as do the deceased's children, now including adopted children (for Wills executed after 10 September 1964) and illegitimate children (for Wills executed after 8 December 1986), but not step-children.” http://www.mylawyer.co.uk/family-left-o ... 045D77086/

The 1964 date would refer to the Succession (Scotland) Act 1964. I suppose that would also cover adopted children of residuary beneficiaries. http://www.legislation.gov.uk/ukpga/1964/41/section/23

If they weren’t automatically included before 1964 then the specific inclusion would have been required. I haven’t seen any 20th Century Scottish wills from that period and couldn’t say if the wording was a standard thing. Possibly one thing about solicitors is that they tend to use standardized wording, and if you google that exact phrase you get nothing, so maybe it was a custom job. http://www.google.com.au/webhp?complete ... 80&bih=841

Not much help,
Alan

[arthurk]

Thanks, Alan - and actually, I think it might help a bit.

What I'm thinking is that between 1930 (when adoption became a legal/formal procedure) and 1964 (when adopted children gained the right to inherit), then as you say, if the testator wanted to include any adopted children as beneficiaries that would only have been possible if there had been a form of wording such as this. So given the situation in 1930-1964, I wonder if this makes it rather more likely that there were adopted children in this particular family.

I know lawyers tend to use standard phrases and may sometimes try to cover all eventualities, but I'm beginning to wonder if adoption might be something that would only be mentioned if it had actually happened, or if it was in the process of happening. It's not something that can happen by accident or without a deliberate decision, so how necessary would it be to mention it "just in case"?

Arthur

[trish1]

Hello Arthur

I don't think I can add anything of use as to whether or not there were adopted children involved in the family you mention - but I was reminded of a will c. 1833 where the children of my ggg grandfather described his children with the following words - "each of my children procreated or to be procreated of my body alive at my death"

The man in question had 3 wives - all of whom had children - but now I am wondering if there were some extra children - as this description would seem to include any illegitimate children - while excluding a child (legitimate or otherwise) conceived but not born before his death. Perhaps attempting to cover all possibilities can still exclude someone.

All I have seen from Scotland are wills and inventory - so now I am wondering are there any surviving records as to how an estate was distributed (which I have seen in Australian records)?

[arthurk]

Thanks, Trish. I've once or twice seen wording (in England, I think) which would apparently exclude legitimate children who were born posthumously, but maybe in these cases the testator had good reason for knowing that he wouldn't be fathering any more children.

In the case I mentioned, I think I could have ordered a copy of the distribution accounts etc, but as there was an extra fee I haven't done so. However, if these possibly adopted children were listed there (as they should have been if they hadn't predeceased the testator), I don't think it would tell me much - would it be because they were birth children, or because they were adopted but included by virtue of the specific wording? I don't think there'd be any way of knowing, would there?

Arthur

[trish1]

Again Arthur I really don't know - but there could be some clues - it would depend on how close you are to the families and what you otherwise know about them. In my case I think I know who are all the legitimate children - but the will only named them as "children" - apart from a couple - so if a distribution existed in Scotland, I think I would like to see it.

Trish

[carolineasb]

Hi,

Where have you found distribution records? These would normally only be held by a Solicitor/Executor and would not have thought these to be public record?

Caroline

[trish1]

Hi,

Where have you found distribution records? These would normally only be held by a Solicitor/Executor and would not have thought these to be public record?

Caroline

In some states of Australia (NSW is where I found them) the distribution records are part of the documents registered with the court & thus after a certain number of years - transferred to the archives. The ones I have list every beneficiary and the amount received. It may have only been when inheritance tax was payable. There is no longer such a tax in any Australian State - stopped in the 1970s/80s - I can't remember exactly when.

I've not seen any from England or Scotland.

Trish

[arthurk]

Where have you found distribution records? These would normally only be held by a Solicitor/Executor and would not have thought these to be public record?

Sorry, I think I have probably misled you. I've been ordering a number of wills, some from NAS and some (more recent) from the Edinburgh Sheriff Court, and have got myself confused. The Sheriff Court offered more documents for a higher fee, but on reflection I now think these were the confirmation and inventory, not the accounts.

Going off on a tangent, in England and Wales there used to be Death Duty Registers, and some of the 19th century ones are online. Is there anything similar for Scotland?

Arthur

[carolineasb]

Hi,

I haven't heard of these (Death Duty Registers) in Scotland. Perhaps, HMRC keep some sort of Register of Inheritance Tax paid but I don't think that will be public record.

All Sheriff Courts have access to Confirmations issued (which will include a Will, if there was one, and the actual Confirmation document which includes an Inventory of the Deceased's Estate) for the whole of Scotland but only back for about 10 years. You would need to check how far back. Before that they are at National Records in Edinburgh. Fees in the Sheriff Court are governed by the particular Sheriff Court Fees Order which is in force at the time of ordering a copy of a Confirmation. The fee may be different depending on whether the copy is required by the Executor for administration/distribution of the Estate or it is merely for information only as the former will require authentication.

Caroline