Rules of construction for instruments concerning propertyN.I.
42.—(1) Subject to any contrary indication, the rules of construction contained in this Article apply to any instrument, other than an existing instrument, so far as it contains a disposition of property.
(2) In applying Article 40(1) to a disposition which depends on the date of birth of a child or children of the adoptive parent or parents, the disposition shall be construed as if—
(a)the adopted child had been born on the date of adoption,
(b)two or more children adopted on the same date had been born on that date in the order of their actual births,
but this does not affect any reference to the age of a child.
(3) Examples of phrases in wills on which paragraph (2) can operate are—
1.Children of A “living at my death or born afterwards”.
2.Children of A “living at my death or born afterwards before any one of such children for the time being in existence attains a vested interest and who attain the age of 21 years”.
3.As in example 1 or 2, but referring to grandchildren of A instead of children of A.
4.A for life “until he has a child”, and then to his child or children.
Note. Paragraph (2) will not affect the reference to the age of 21 years in example 2.
(4) Article 40(2) does not prejudice any interest vested in possession in the adopted child before the adoption, or any interest expectant (whether immediately or not) upon an interest so vested.
(5) Where it is necessary to determine for the purposes of a disposition of property effected by an instrument whether a woman can have a child, it shall be presumed that once a woman has attained the age of 55 years she will not adopt a child after execution of the instrument, and, notwithstanding Article 40, if shw does so that child shall not be treated as her child or [F1(if she does so as one of a couple) as the child of the other one of the couple] for the purposes of the instrument.
(6) In this Article, “instrument” includes a private Act or Measure settling property, but not any other statutory provision.
F1Words in art. 42(5) substituted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 30(10) (with regs. 6-9, 30(11))
Modifications etc. (not altering text)
C1Art. 42 applied (with modifications) (6.4.2010) by Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (S.I. 2010/985), reg. 3, Sch. 2