Your MoneyQ&A

Will new adoption law allow me inherit some of my mother’s land?

Birth Information and Tracing Act provides new entitlements, but only for people whose birth was illegally registered

An adopted person wants to know if they are entitled to inherit part of their mother's home and farm under recently passed legislation. Photograph: iStock

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Dominic Coyle
Sun May 12 2024 - 11:33

Would you have any idea of when the law is going to be changed so that I can claim some of my birth mother’s land just like my sister and my stepsister whose father lived on the land with my mother?

My mother left the house and land to him until he died and it would then go to his next of kin — my stepsister and my sister.

It just seems so unfair. If this law was passed by [Minister for Equality] Roderic O’Gorman, would that mean I would also be entitled to part of the land? And if so when do you think this will be?

Mr D.F.

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This is a very poignant and delicate situation, albeit not unique in the occasionally complex pattern of Irish family structures.

Fortunately, there is legislation which guides in the area but, as always with legislation, there are winners and losers. You either fall within the terms of law that allow you to benefit or you do not.

And both for that reason and because of the potential value of this contested land, I think you should talk formally to a solicitor.

Your case centres on a will made many years ago by your birth mother. She made provision that, on her death, her home would go to her partner, who, based on other information you sent me, was specifically named in the will. He would also have control and use of the land during his lifetime. But when he died, the land would then revert not to his family but to your mother’s next of kin.

Although the will is decades old, it has now become relevant to you because this man has died.

As far as I can gather from your letter, the estate has been divided between your sister and your stepsister, the daughter of the man who lived with your mother back when her will was drawn up.

The first thing is to separate the position in relation to your mother’s home and the land that she owned. The copy of the will that you sent with your letter makes it clear that he inherited the home absolutely on your mother’s death. There is no life interest; it is his from that point.

As such, he can leave it to whom he decides upon his death. If he had no will, it would pass to his daughter, your stepsister under the rules of succession.

That leaves us with the land.

In many walks of life, next of kin is a somewhat nebulous thing, meaning little more than a close relative who speaks for another. But in succession, it has a more precise meaning and the Succession Act of 1965 sets out very clearly how next of kin rank in terms of right of inheritance.

In that scenario, there is no stated right to inheritance for a stepchild, somewhat oddly in today’s world.

But separate legislation — the 1987 Status of Children Act — is quite clear that once someone is adopted, they no longer have any right of inheritance from their birth parents even as they acquire a right of inheritance from their adopted parents.

This is down to the legal nature of adoption. For instance, if you had been fostered rather than adopted, you would retain inheritance rights from your mother.

Of course, that is the position under intestacy, where there is no will. I mention it only because it sets the basic ground rules of legal understanding on the subject.

In this case, there is a will so intestacy is not the issue. So the question is, who is the next of kin?

Clearly your sister is covered by the definition. She remained a legal part of your birth mother’s family. I am less clear as to whether that phrase would cover your stepsister. I suppose it might depend on whether she was formally adopted by your mother during her life with the girl’s father.

But you are, understandably, more concerned with your own position, and specifically, if the recent passing of the Birth Information and Tracing Act, shepherded through the Oireachtas by the Minister for Children and Equality Roderic O’Gorman, changes your position.

As adoption would remove you as next of kin in intestacy, I assume you would not qualify as “next of kin” in a will, unless specifically mentioned.

The question then hinges on the nature of your adoption. The O’Gorman Act was signed into law by the President in June 2022, so the law has already changed.

I spoke to Mr O’Gorman’s department about what the Act might mean for someone in your position and they clarified that while there are changes in the Succession Act as a result of the legislation, it relates only to people affected by an illegal or incorrect birth registration.

This is the crux. And separate legislation, the Status of Children Act 1987 mentioned earlier, sets down the position of adopted people quite clearly.

Section 3(2)(a) of this Act says that, for the purpose of parental relationship, an adopted person shall “be deemed from the date of the adoption to be the child of the adopter or adopters and not the child of any other person or persons”.

For anyone adopted in Ireland, the next subsection defines an “adopted person” as someone adopted under the Adoption Acts, 1952 to 1976.

So, if you were adopted legally, then your status will not change and nothing in the legislation sponsored by Mr O’Gorman’s department will grant you any additional rights to your mother’s land.

But if the adoption was illegal, the department notes that the Birth Information and Tracing Act 2022 “contains a number of provisions specifically relating to these matters in order to provide certainty to persons who were the subject of an illegal or incorrect birth registration”.

Most pertinently, Part 8 of the Act amends the Succession Act to provide for people who find themselves in that position.

“These amendments ensure that the relationship between an affected person and his or her social father and mother (the parents who raised them) shall be the same as the relationship between the affected person and his or her birth father and mother for the purposes of succession,” it says.

The impact is that a person in this position has a right to inherit from both their birth family and their adoptive (social) family under intestacy. They can also challenge a will where they feel they have not been properly provided for although this can be a difficult case to prove.

As you are fairly clear on your identity, I suspect the adoption was legal and therefore you will not have any call for a share of your mother’s land. In relation to people who have been legally adopted, the Department is quite clear that their succession rights are unchanged by the Birth Information and Tracing Act.

“It remains the case that once a person has been legally adopted, they are not entitled to any portion of their birth parents’ assets. Instead, they only have succession rights from their adoptive parents,” they tell me.

However, where people who have been adopted are nevertheless mentioned in a birth parent’s will and inherit under that will, they are entitled to the higher Category A tax-free threshold of €335,000 applying to gifts and inheritances from a parent to a child — notwithstanding the formality of the adoption.

One final thing, as I always note in these instances, I am definitely not a solicitor and this is both a very specific legal matter and one of significant potential value to you. In the interest of clarity, I suggest it would make sense for you to consult a solicitor formally.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice

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