Step-grandchildren described as “descendants” and “children”- can they inherit?

Some grandparents like to leave something to their grandchildren in their will.  If they have step-grandchildren as well, as is increasingly likely these days, are they to be included in the will too?

If grandparents intend step-grandchildren in their extended family to benefit under their will, then to assist their executors for the efficient administration of their estate, it would be helpful if they could make that clear in their will, as a recent New South Wales case has highlighted.

Meaning of beneficiary in the will and step-grandchildren

In this case¹ the deceased’s will established a testamentary trust for his son.  The beneficiaries of the trust were defined to be the son as primary beneficiary, his spouse, children, grandchildren and their descendants.  The son had step-children, being his partner’s children from a previous relationship.  So the deceased had step-grandchildren.

Were the step-grandchildren included in “children” and “descendants”?

The executors and trustees brought proceedings before the Probate Court about whether  the deceased intended his step-grandchildren to be included as beneficiaries under the testamentary trust.

Some grandparents like to leave something to their grandchildren in their will. If they have step-grandchildren as well, as is increasingly likely these days, are they to be included in the will too?

The questions included whether, upon the proper construction of parts of the Will, references to the words “descendants” and “children” included the deceased’s step-grandchildren.  And if so, whether they should be rectified to make it clear that they were.

The deceased’s will had been prepared as a matter of urgency following a health crisis.  In the rush it wasn’t clarified that two of the grandchildren were in fact step-grandchildren.

When extended/blended family relationships are good, you might ask what is the problem, why the expense of a court hearing? The problem was that for the executors and trustees administering the estate, it wasn’t clear in the will, whether the references to “children” and “descendants” meant that the son’s step-children were intended by the deceased to be counted in among the beneficiaries of the testamentary trust.

While all those interested in the outcome were represented before the Court, and had agreed with the application, the Court said this did not relieve it from conducting its inquiry.

Ambiguous meaning of “children” and “descendants”

It was submitted to the Court that references to “children” and “descendants” in the will were ambiguous in these circumstances.  The circumstances were the existence of step-grandchildren and whether the deceased intended they were to be regarded as being within the meaning of  “children” and so included as beneficiaries. There was no clear answer in the will as to the deceased’s intentions; consequently the executors and trustees sought declarations from the Court.

Uncontested evidence before the Court showed that the deceased welcomed the children of his son’s partner as members of his family.  The Court found that the relationship between the deceased and his step-grandchildren was close and reciprocated and that he intended to benefit the step-grandchildren as such in his will and to be included.

The usual meaning of “child” – can it be extended to step-children?

The Court reviewed cases in which the meaning of “child” or “children” in contemporary society can be wider than the original legal meaning of children by blood. The Judge adopted an earlier decision of the Court on the meaning of “children” where it had been held to include stepchildren. In that case the Court said (underline added):

“..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.”

In the present case the Court said that the meaning can be extended to stepchildren (underline added):

“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.”

The Judge thought the evidence made it clear that in referring to either “descendants” or “children” the deceased fully intended to include the step-grandchildren. That he had considered them an integral part of his extended family and integral to his son’s family.

Extended meaning of “child” to include step-child not in every case

Note the Court said in particular cases an extended meaning will be given to “child” and “children”, it is not a given interpretation despite its elasticity in some circumstances. As usual every situation is different.

Court may rectify a will

Under NSW succession legislation, the Court may rectify a will if the will does not give effect to the testator’s instructions: s 27(1)(b) of the Succession Act 2006 (NSW).   Succession and probate legislation in other jurisdictions also provide similar powers to the respective courts.

On the evidence before it the Court was satisfied that the deceased had given instructions that the step-grandchildren were to be included as beneficiaries of his son’s testamentary trust.

In particular the Court made a point that this case was a situation where a will had not given proper effect to the testator’s instructions.  It required the intervention of the Court so as to construe the will to give effect to the testator’s instructions. Therefore the Court concluded it was desirable to rectify the relevant clause.   

The will was rectified by an order of the Court so as to make it clear that the step-grandchildren of the deceased be included within the expressions “descendants” and “children”.  The Court said that the orderly and efficient administration of the estate will be facilitated if the will was rectified to expressly include the step-grandchildren.

Some points to consider with will-making and step-grandchildren:

• Don’t put off making a will, until the “last minute”.
• In blended/extended family situations it is important to consult and think through possible consequences of how arrangements will work.
• If you wish to benefit (or not) any step-grandchildren make that clear. Name the step-grandchildren.  Don’t leave it unsaid assuming that “children” and “descendants” will cover it.
• Try to be helpful to your executors and trustees and avoid ambiguity wherever possible. 

1.  Estate of Wright [2016] NSWSC 1779

B Stead
BHS Legal

Updated 28 August 2021