A seemingly simple question, surely, what does “children” mean? People often make gifts in Wills and trusts to their own children, to the children of relatives or friends, or to other individuals whose status depends on parentage. Some gifts refer to a beneficiary by name, for example, “I give £10,000 to my son Edward Hands”. However, many people do not name the beneficiaries expressly, and instead use more general words. It is important to ensure that the wording in your Will properly reflects your family. Unless you define for yourself what you mean by “children” then there is an overwhelming amount of case law that has decided exactly who is your child and who is not, and it may not be quite who you would expect…
Children born to married women have a rebuttable presumption that the husband is the father of that child. There is, as yet, no precedent to apply to the wife of a mother within a same sex marriage.
Illegitimate Children are treated the same as legitimate children so long as the Will was made on or after 4 April 1988. Different rules apply to earlier Wills.
Children of “void” marriages are treated as legitimate if, at the time of conception, either of the parties reasonably believed the marriage to be valid and the father is domiciled in England & Wales when the child is born (this is not a situation widely seen in practice).
Adopted children are treated as the legitimate children of the adopters from the date of adoption. They cease to be recognised as the child of any other person at that time. Adoption is now recognised as the way to ensure that a civil partner or same sex spouse can be recognised in law as the second parent of a child (unless these are born through fertility treatment in which case different rules apply).
Stepchildren are often considered as, strictly, they are not within the definition of children and therefore can only be included if the Will or Trust can be shown to have intended for them to be included.
Posthumous children need to be considered very carefully as the wording of the document can impact on this, and there are different precedents depending on a broad range of circumstances.
Gifts in Wills & substitution of descendants are actually slightly more generous that the above rules may suggest and, unless the Will says otherwise, will extend to illegitimate and posthumous children.
Fertility Treatment (where not adopted) has created a huge change in how children are legally recognised. Different rules apply depending on when the treatment resulting in the birth was received (and there will undoubtedly be cases clarifying this). The key dates for changes to the law are that they were introduced for children born after 4 April 1988, changed on 1 August 1991, but then there is a period 1 August 1990 (i.e. an overlap) to 6 April 2009. Current rules apply from 6 April 2009. If this affects your family then it is strongly advisable to review your position.
Whilst this is a simple overview, it may help explain why the drafting of Wills and Trusts is so detailed – all of these factors to take into account in determining the use of a single word, “children”, but as most estate planning has the family at the heart of it, it is essential to get it right.
If your family includes adopted children, step children, children born through fertility treatment or to same sex couples, please be diligent when preparing Wills as the law may not always view your family quite the same way that you do.Talk to our legal team
The information provided in all of our blogs reflects only a narrative of some elements to consider on the topic. The blogs do not contain considered legal advice and should not be relied upon as advice. Please see our website terms and conditions for full details of our disclaimer. If you are interested in obtaining advice, please contact one of our lawyers who will be happy and able to advise you on your own particular circumstances.