WILLS – DOES THE TERM “GRANDCHILDREN’ INCLUDE “STEP-GRANDCHILDREN”?
A big point of confusion in will disputes is whether “step children” and “step-grandchildren” can be included under the expressions ‘children’ and ‘grandchildren’.
When all else fails, Courts aim to determine expressions in a Will according to the intention of the deceased. In some cases, Courts may look into the nature of family relationships in order to determine the meaning of an expression such as “child”.
In a recent case where there was an intention in the Will for step-grandchildren to be beneficiaries, it was decided that the definition of “grandchild” could be extended to “step-grandchild.”
In the event that the Court cannot infer a clear intention of the deceased to a specific detail, the Court will maintain the presumption to apply the ordinary meaning of the word. However, it may be that in today’s society, Courts are more amenable to extending “child “to step-child” and so on.
This will not necessarily apply in all cases.
In the meantime, there are some useful points to consider when drafting your will to avoid confusion and time spent contesting a will in Court.
If you wish to leave your assets to any step-children or step-grandchildren (or you don’t want leave assets to them) you should make it clear using specific language. In the event that ambiguity is found then your loved ones may be left out of a will and without the benefit of your assets after your passing.
You may wish to name the step-children or step-grandchildren, but that will depend on individual circumstances.
Try to be helpful to your executors and trustees by avoiding ambiguity, so that when the time comes, they may confidently fulfil their tasks and give effect to your wishes.
And as always, do not put off making a will – do it while you are thinking clearly.
If you need assistance to conduct a will update due to any of these concerns please contact our Matthews Folbigg Wills and Estate Planning lawyers on 9635 7966.
