By B Stead
Meaning of “nieces and nephews” – the general assumption
Our nieces and nephews are the children of our brothers and sisters, this hardly needs saying. If someone wishes to leave a gift to their “nieces and nephews” in their will, it should be a simple matter, when the time comes, to identify which individuals are a niece or a nephew and so entitled to share in the inheritance. However circumstances and relationship may change from the time a will is made to the date of death.
“Nieces and nephews” includes children of step-brothers and sisters
In succession law, when the expression “nephews and nieces” is used in a will, it includes children of brothers and sisters as in the ordinary meaning, and children of step-brothers and step-sisters. Reference is sometimes made to nephews and nieces by blood (meaning two common ancestors) and of the half-blood (one common parent). The graphic below seeks to show this in regard to the nieces and nephews of the figure outlined in orange .
Nephews and nieces – what is intended?
The point to note is that where a gift is being made to nephews and nieces in a will, if it is intended that anyone is to be excluded, or included in the group, to make that clear. As relationships and circumstances can change from the time a will is made, it is important to review a will and update it from time to time so intentions are properly documented.
In one case a will-maker provided in her will that her estate was to go to her de facto partner if he survived her by a defined period of time. If not, it was to go to those of her nephews and nieces who had survived her by the required period.
The partner did not outlive the deceased by the stated period. This meant that the whole estate was to be distributed among her nephews and nieces in equal shares.
It was then a question of identifying who they were. There were nephews and nieces in on the ordinary meaning as well as children of her step-siblings, one parent having re-married. All of these would be included as being her ‘nephews and nieces’ under the legal meaning of nephews and nieces, unless the will-maker had stated something different to that in their will.
However the problem for executors in deciding what ‘nephews and nieces’ meant, was that her de facto partner’s brother had children, whom she had referred to sometimes as her nephew or niece. This raised the difficulty of whether she intended they were to be included in her gift to “my nephews and nieces” or not.
To resolve this issue the executors applied to the Court for advice and for the Court to construe the issue. Executors, administrators and trustees can approach the Court for advice or direction when they are unsure of how to proceed in circumstances of ambiguity about the meaning of words, clauses in a will. Trustee legislation mostly provides for this, for example in New South Wales section 65, ‘Advice” of the Trustee Act 1925 (NSW). Legal assistance and advice should be sought.
Noting that the construction issue was difficult, the Court declared that the true construction of the will, and in the events which had occurred, was that the the residuary estate was to the nephews and nieces of the whole blood, and those of the half-blood, but not to include the children of the brother of the deceased partner.
Parry v Haisma  NSWSC 290
© BHS Legal