Ambiguous use of the term ‘children’ in will leads to dispute

Published 19 Sep 2017

Writing a clear will helps to prevent inheritance disputes arising when an individual dies. However, any ambiguity over even a single word can lead to the matter ending up in court.

A recent case that went before NSW Supreme Court is a good example of when a lack of clarity can require a judge’s decision.

On this occasion, the deceased’s will said his assets should pass to his “children” when he died, despite the fact he had no biological children. The man’s two stepchildren argued that the man had obviously meant for his estate to be distributed between them.

Another relative stood to receive the entirety of the estate if the courts ruled the deceased had died intestate.

Intestacy rules and the meaning of ‘children’

The defendant in the case was a great nephew of the deceased’s mother, who passed away several weeks after her son.

The mother left the residue of her estate to her great nephew, as he had cared for her in the years leading up to her death. Under intestacy rules, the son’s estate would pass to his mother when he died, which would then be bequeathed to the great nephew upon her death.

Stepchildren are not automatically included as beneficiaries in intestacy law, so the deceased’s use of the word “children” in his will became a key point of contention between the parties.

If the stepchildren could prove he was referring to them, the grand nephew would have no claim on the $395,000 estate.

The judge’s decision

The deceased and his wife – who was the mother of his stepchildren – produced identical wills in October 1988, both of which passed their estates to the other if one died. The man’s wife died three years later.

A clause in each will stated that if one spouse survived the other the estate would go “in equal shares as tenants-in-common for such of my children as shall survive me”.

Despite the man having no natural children, the judge ruled that the deceased’s intentions were that his stepchildren should receive his estate.

An order of probate was therefore granted to one of the man’s stepdaughters and the deceased’s assets will be split between her and her sister accordingly.

Cases such as this highlight how even small discrepancies in a will can lead to confusion and legal proceedings.

If you believe the will of a loved one is unclear and are considering an inheritance dispute, please get in touch with Gerard Malouf & Partners Will Dispute Lawyers.

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