It is not unusual for legal definitions to have meanings that may not be obvious to a lay person. Seemingly simple references to words like “children” in a legal document like a Will can have unintended consequences.
The decision to leave an interest in a deceased estate to a child or children, for most, would appear quite straight forward. However, provision left in a Will to a “child” or “my children” can become contentious if the testator leaves surviving step-children, adopted children, foster children and even step-grandchildren.
The core issue is often trying to determine what the intentions of the testator were at the time they made their Will, and who they considered to be their “children”. For example, did the testator intend to only make gifts to natural children, which can include adopted children? Or, did they intend to include children whom lived with and were dependent upon them during the testator’s lifetime, which can include step-children and others?
The ordinary interpretation is that the word “children” means legitimate, biological children of the testator. However, if it can be shown to the Court that the testator considered step-children to fall within the meaning of “children”, the Courts will favour the interpretation that most closely resembles the testator’s intentions.
There are many judgments from the Courts where different interpretations have been given to the word “children” depending upon the unique circumstances of each case. No family is, after all, the same.
In the decision of Estate of Wright  NSWSC 1779 the judge said:
“…in a will, the word “children” should ordinarily be read as referring to natural children for that is its primary meaning, but that other persons should be included within the term when legislation so requires or when the terms of the will or evidence show that there is reason for doing so.”
“Notwithstanding adherence to what might be seen as the traditional meaning of the word “children”, the Court has no doubt that in today’s society in particular cases its meaning readily extends to stepchildren.”
In Wright, the judge held that by referring to descendants and children in his Will, the testator considered that his step-grandchildren were part of his extended family and would be included upon the distribution of his estate.
Drafting a Will
In the case of Wright above, the Will was prepared in urgent circumstances which meant limited time was available to clarify all of the different family relationships. Family structures can change dramatically over time too, and by the time a Will comes into operation, circumstances may have changed.
When drafting a Will it can be advisable to expressly include or exclude a person as a beneficiary if there is any prospect of ambiguity. Specifically naming beneficiaries in a Will, where appropriate, ensures a person’s testamentary intentions are clearly expressed and avoids any uncertainty regarding who was intended to benefit from the estate. If a discretionary trust is being considered where no specific beneficiary is to be named, clearly defining what persons are to be entitled upon distribution is very important to avoid the estate incurring additional legal costs and undue delay.
Family Provision Claims
If a testator is, or has at some point in time been a step-parent to a child, the prospect of a future family provision claim against the estate should also be considered.
Step-children are not automatically considered an “eligible person” under Section 57 of the Succession Act 2006 (NSW). In order for a step-child to make a successful family provision claim they would be required to prove they were a person who:
- At any particular time, was wholly or partly dependent upon the deceased person,
- Who was at that time or any other time, a member of the household of which the deceased person was a member, and
- There are factors that warrant the Court making orders in their favour.
If a step-child was at one time dependant on the testator they may be successful in meeting the statutory requirements.
Notably, a legally adopted child is eligible to bring a family provision claim against an estate just as if they were a biological child.
Get in touch with us
The Wills and Estate team at Turner Freeman Lawyers can provide professional advice to ensure your Will is drafted in clear and concise language that ensures your last testamentary wishes are carried out.
If you would like assistance preparing your Will, or you would like to discuss any questions you may have regarding estate planning, do not hesitate to contact Turner Freeman Lawyers on 13 43 63 or via our online enquiry form.