Who is a "child" when planning your estate?

In a modern society where dynamic family structures are becoming more prevalent and varying methods of contraception are widely accessible, it follows that the legal definition of a 'child' has broadened significantly. Where 'child' was previously considered as only biological, the definition has now extended, but is not limited to, step-children, adopted children, foster children, ex-nuptial children, and those conceived by IVF or through a surrogate.

Many of us will leave a general provision in our wills dividing an estate "equally between my children." While this may not be a notable issue if you do not have a complex family structure, it may not take into account all the intended beneficiaries of the testator, especially if step-children or foster children are involved. Leaving this definition up to interpretation may leave your will open to contestation and unwanted claims, leading to delays in granting probate, administration of the will, unnecessary legal costs, and unfortunately, family disputes.

Current interpretation of 'children' under wills

Section 57 of the Succession Act 2006 (NSW) lists 'eligible persons' who can apply to the court for a family provision order if there is a dispute regarding a will. This section also defines the meaning of a 'child', to include a biological child, an adopted child and a child for which the testator has care responsibility. It is understood that a biological child also includes children conceived by way of IVF and through a surrogate.

Adoption has the effect of treating the adoptive parents as the biological parents of the child. This effectively allows them to 'adopt out' of the child's biological parents, meaning the child cannot make a claim on their natural parents' estate, unless they can demonstrate some other eligibility criteria apart from a Family Provision Claim (see section 95(2)(d) Adoption Act 2000 (NSW)).

With children conceived through surrogacy, the birth mother is generally viewed as the mother until the surrogate parents obtain a parental order from court to legally adopt the child, having the same effect as 'adopting out' on adoption. This works similarly in that the surrogate child cannot make a claim from their biological mother's estate.

Furthermore, with IVF, the sperm donor is not treated as the father as he has consented to the procedure. Likewise, the child will not have any claim on their donor's estate.

 Many issues can arise with step-children, who are children from a partner's previous relationship. Step-children are legally not considered a child under your will; if a provision leaves your estate to your children, your step-child will not be included despite you perhaps intending to do so. As step-children are a common part of family structures, care should be taken in the drafting of a will and whether or not you want to include them in the division of your estate.

 A problem can also arise with ex-nuptial children, who are children born outside of marriage. Ex-nuptial children are treated as legal children under sections 6(2)-(3) of the Status of Children Act 1996 (NSW). The policy of this legislation demonstrates an intention not to exclude children born outside of marriage, as they are still biological children. However, issues arise if you wish to exclude ex-nuptial children from your will, especially as this leaves open the possibility of ex-nuptial relatives to make potential claims. If you do not want ex-nuptial children to benefit from your will this should be expressly provided for, but it is worth noting that it is difficult to draft an effective provision which excludes ex-nuptial children, as it can be considered risky under current legislation.

Why this is important when planning your estate?

There are significant problems which arise from the meaning of 'eligible persons' and the definition of a ‘child’ above. This emphasises the need to incorporate a definitions provision under your will to clearly define who you want to encompass to benefit from your will. There are several circumstances in which this may become a problem if not properly defined.

Problems with listing individual beneficiaries as a solution

To prevent unwanted claims against your will and allow easy execution of your estate, it may be in your interest to list individual beneficiaries rather than grouping relatives you wish to benefit from your estate. This, however, can pose its own issues. It may be inconvenient to list every beneficiary, especially if there is a significant number of them. This leaves open the possibility of beneficiaries to be unintentionally omitted from the will and lengthen your will where it could be shortened and read more efficiently.

You may also wish to provide for a group of beneficiaries, for example your grandchildren, some of which may be born around the time of your death or before the grant of probate, and therefore cannot be specifically named or correctly identified. (It is worth mentioning you can list children conceived but not yet born as beneficiaries under a will).

Furthermore, family structures can change significantly over the course of only several years. It is inefficient and expensive to continuously alter and update your will to account for these changes, hence the need for a broader umbrella provision rather than naming individual persons.

Why add a definition?

It is worth noting that being a step-child and foster child, or a child not provided for under a will, does not automatically exclude you from making a claim. While these children cannot go through the avenue of a family provision order, the case may be nevertheless be brought before the Courts, to be decided on a case-by-case basis, if it was the testator's intention to provide for that child when they listed 'children' in their will, or if it can be demonstrated that the child was dependent on the testator. 

Ultimately, many of the above problems can be mitigated by simply importing a definitions section in your will to assist the executor in its interpretation. Care should be taken in defining who you wish to include or exclude in a will, to allow for proper administration of your estate, and make the executor's job much easier. The definition of a 'child' is a term you should import in your will to prevent confusion, prevent unwanted claims, and ensure the proper administration of your estate. Legal advice should be obtained where necessary to minimise any confusion.