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It has been widely reported that Steve Bing, the well-known American film producer who sadly committed suicide in June, disinherited any children he had in his most recent Will executed in 2001.
It has subsequently transpired that these children include his son with Elizabeth Hurley, Damien Hurley, who had not been born at the time, and his daughter Kira Kerkorian who has recently been forced to prove that she was Steve’s biological child by taking a paternity test. The estate is being dealt with and administered in the US but nonetheless raises some interesting issues were the same (or a similar) situation to arise here.
Before the Family Law Reform Act 1969 (“the 1969 Act”) came into force on 1 September 1970, the common law rules of construction that a child is legitimate only if the child was born or conceived in wedlock applied when dealing with trust deeds or wills. The 1969 Act is not retrospective so difficulties may still arise in relation to trust deeds or wills settled/executed prior to that time.
The law in this country now does not make a distinction between legitimate and illegitimate children in terms of entitlement to benefit from a parent’s estate but it may still be necessary to evidence paternity or maternity in circumstances whereby parentage is not documented on a child’s birth certificate. This is becoming increasingly common in estate disputes.
In the case of Nield-Moir v Freeman , the High Court directed that a woman undergo DNA testing to establish whether or not she was the biological daughter of the deceased, Colin Birtles, and consequently entitled to a share of his estate (passing by intestacy). Mr Justice Matthews determined that “justice” of the case required that the DNA evidence be made available to the court and that the woman should not be allowed to obstruct that. On this basis, he found that the court should exercise its inherent jurisdiction to direct the giving and testing of a saliva sample, with the court being able to draw an adverse inference if the woman did not consent to give the sample.
Interestingly, it has also been reported in relation to the Bing estate that prior to his death Steve actively fought for Damien and Kira to benefit under a trust settled by his own father Dr Peter Bing (thought to be worth in the region of $500 million). Dr Bing is said to have sought to have them excluded on the basis that he did not consider them to be his grandchildren having never met them and neither having been raised by his son as part of his family. The court is said to have ruled in Steve’s favour rejecting his father’s attempt to reclassify the definition of a grandchild in circumstances whereby Damien and Kira were Steve’s biological children.
In this jurisdiction, the Human Rights Act might also be a necessary consideration in these types of cases. The case of Hand v George  (concerning adopted children) is a good case in point in this regard. In that case, the High Court held that a 1946 will trust that did not include adopted grandchildren within a class of beneficiaries discriminated against the adopted grandchildren’s rights under Article 14 of the European Convention on Human Rights (“the Convention”) in conjunction with Article 8 of the Convention.
Under his will dated 6 May 1946, Henry Hand (who died in 1947) left the residue of his estate to his three children in equal shares for life with the remainder to such of their children who attained the age of 21 in equal shares. The claimants were the adopted children of one of the deceased’s sons. The claimants accepted that the law in force at the relevant time – the Adoption of Children Act 1926 – precluded them from any entitlement but sought to argue that their respective Convention rights should override the discriminatory nature of the domestic law so that they were treated as equals with the deceased’s birth grandchildren. Mrs Justice Rose agreed finding that the reference in the deceased’s will to the child or children of his children includes any adopted grandchild and so included the claimants.
We watch with interest how the Steven Bing case evolves.
If you would like to discuss any points raised in this blog, please contact a member of our Wills, Trusts and Inheritance Disputes team.
You may be interested in our Wills, Trusts and Inheritance Disputes FAQs.
Katherine Pymont is a Senior Associate in the Dispute Resolution team. She has a broad spectrum of litigation experience with particular expertise in Wills, Trusts and Inheritance Disputes. Katherine had a previous career in the media.
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