Nieces and nephews – leaving them an inheritance by your will

Nieces and nephews – the general assumption

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 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.

Nieces and nephews – what is intended?

When leaving a gift to nephews and nieces in a will make it clear who you want included or not.  Review your will and update it  as relationships and circumstances change to ensure your intentions are properly documented.

For example a will maker willed her estate to her de facto partner if he survived her by a defined period of time.  If he didn’t survive her then the estate was to be divided equally among those of her living nieces and nephews.¹

Identifying who takes

Her partner did not outlive her by the stated period.  It was then a question of identifying the nieces and nephews. There were some according to the ordinary meaning as well as children of the deceased’s step-siblings, one parent having re-married.  All of these would be included in the category under the  legal meaning of nephews and nieces, unless she had stated something different or contrary, to that in her will.

However the deceased’s de facto partner’s brother had children, and sometimes she had referred to them as her nephew or niece.  Did she intend they were to be included in her gift?

Seeking advice from the Court

The executors applied to the Court for advice and construction of the will.²  Noting the difficulties, the Court declared that on the true construction of the will and the events which had occurred, the residuary estate was to be distributed to the nieces and nephews of the whole blood,³ and those of the half-blood,⁴ but not to include the children of the brother of the deceased de facto partner.

Talking about relationships and relations can be confusing but generally we mean the following:

1. Parry v Haisma [2012] NSWSC 290.

2.  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.

3.  Whole blood relations: means you have two common ancestors.

4.  Half-blood relations: means you have one common ancestor.

B Stead
BHS Legal
Updated July 2023