What does the term "my children" mean, when used within a Will?

A South Australian Supreme Court decision from last year, In the Estate of Olive Deane Pepper (Deceased) [2025] SASC 103, offers a timely reminder of the importance of precise language in Will, especially when family relationships are complex. The case involved a dispute over whether an adopted-out daughter, who later reconnected with the deceased, was entitled to benefit from the deceased’s estate under the term “my children” in the Will.

While the case was decided under South Australian law, it raises significant issues that are equally relevant for residents of New South Wales (NSW). This article will explore the case background, legal issues, court findings, and practical takeaways for individuals seeking to prepare or revise their wills in NSW.

Background

Olive Deane Pepper passed away on 27 December 2023 at the age of 100, leaving behind an estate valued at approximately $879,275.96. Her last Will, executed in 1992, appointed three of her children - Debra, Alan, and Brian - as executors and named them in various testamentary roles.

A fourth child, Janette Marie McBride, was the biological daughter of Olive but had been adopted out shortly after birth in 1954. Janette reconnected with her mother in the late 1980s, and over the following decades, they developed a close and affectionate relationship. Despite this, the other children were unaware of Janette's existence until much later, and Olive never formally amended her Will to include her.

After Olive’s death, Janette claimed she was entitled to a share in the estate under clause 4(c) of the Will, which left the residue of the estate to “such of my children and their issue as survive me by thirty days…”. This raised the central legal question: Did “my children” in the Will include Janette?

Legal Issue Before the Court

The primary issue was whether Janette, having been adopted by another family but being Olive’s biological daughter, was included in the term “my children” for the purposes of clause 4(c) of the Will.

The executors (Debra, Alan, and Brian) applied to the Court for directions under the Administration and Probate Act 1919 (SA). The question was posed as follows:

“Is Janette Marie McBride, for the purposes of the Will, a child of Olive Deane Pepper, and accordingly entitled to share in the residue of the estate in accordance with clause 4(c) of the Will?”

Arguments and Evidence

The Executors’ Position

• The executors argued that the Will, when read as a whole, did not support an intention to include Janette.
• They relied on the fact that Olive expressly named only three children (Debra, Alan, and Brian) in her Will, both as executors and beneficiaries.
• They noted that Olive had made “mirror wills” with her husband, Ray Pepper, and Janette was not mentioned in either.
• They argued that, given Janette had been legally adopted out, she had ceased to be Olive’s child in law.
• The executors also pointed to conversations and statements made by Olive over the years suggesting her intention was to benefit only the named children and their issue.

The Respondent’s Position (Janette McBride)

• Janette argued that she was a biological child of Olive and had re-established a loving relationship with her for more than 30 years.
• She submitted that the term “my children” should be understood as including all children born to Olive, regardless of legal adoption.
• Her counsel contended that Olive was aware of Janette’s existence and had maintained a strong, albeit secretive, relationship with her.
• Janette also produced photographs, greeting cards, and affidavits from family members to support the claim that Olive regarded her as a daughter in every meaningful sense.

Court’s Analysis and Reasoning

Justice Hughes of the Supreme Court of South Australia delivered the judgment, concluding that Janette was not a “child” of Olive for the purposes of the Will.

Key Reasons for the Decision:

1. Language of the Will:
   • The Will expressly named Debra, Alan, and Brian as “my children” and appointed them as executors.
   • Janette was not mentioned anywhere in the Will, which the Court found to be a strong indication of testamentary intent.
   • The use of the term “my children” without qualification in clause 4(c) was not sufficient to infer an intention to include Janette.
2. Mirror Wills:
   • The fact that Olive and her husband made mirror wills supported the inference that “my children” referred to the three children they had raised together.
   • Janette was not a child of Mr Pepper and was not raised in the family unit, which suggested she was not intended to be a beneficiary.
3. Effect of Adoption:
   • While acknowledging that Janette was Olive’s biological daughter, the Court noted that Janette was adopted out and, in law, ceased to be Olive’s child from the date of adoption.
   • The Court stressed that unless a will shows a contrary intention, adopted-out children are generally not included in references to "my children".
4. Extrinsic Evidence and Affection:
   • The Court accepted that Olive and Janette had a close and affectionate relationship for many years.
   • However, this evidence was found not to overcome the express wording of the Will.
   • As Justice Hughes observed:

     “That Mrs Pepper recognised Ms McBride as her daughter, with all that may entail, is not to the point. The task for the Court is construction of the Will, not construction of the manner in which Mrs Pepper viewed or treated Janette.”

5. Failure to Update the Will:
   • The Court found it significant that Olive had over 30 years to update her Will but chose not to do so, despite her rekindled relationship with Janette.
   • This supported the inference that she did not intend Janette to be a beneficiary under the existing Will.

Implications for Estate Planning

1. Be Clear and Specific in Wills:
   • If you intend to include adopted-out children or estranged biological children, they must be clearly identified in the Will.
   • Vague or general terms such as “my children” or “my issue” can lead to costly disputes.
2. Update Your Will When Circumstances Change:
   • Relationships evolve over time. If you reconnect with a child or become estranged from someone previously included, it is essential to update your Will accordingly.
   • Failing to revise your Will can result in your estate being distributed contrary to your current wishes.
3. Legal Definitions Matter:
   • In NSW, as in South Australia, adopted children are the legal children of their adoptive parents and not of their biological parents.
   • This can affect whether they are included in terms like “my children” or “next of kin”.
4. Mirror Wills May Restrict Flexibility:
   • Couples who prepare “mirror wills” should be cautious about how their wording might limit individual testamentary freedom, especially when blended families are involved.
5. Don’t Rely on Informal Conversations:
   • Courts will generally not treat informal verbal statements about testamentary intentions as overriding the written terms of a valid Will.
   • Testamentary intentions must be formalised in the Will document itself.

Conclusion

The decision in In the Estate of Olive Deane Pepper (Deceased) illustrates how the wording of a Will and the testator’s failure to make updates can have a lasting legal impact regardless of how relationships may change during a lifetime.

For individuals in NSW with complex family dynamics, it is vital to ensure that their Will accurately reflects their current relationships and intentions. General terms can exclude individuals unintentionally, especially where legal definitions of "child" or "issue" come into play.

If you have children who were adopted out, stepchildren, foster children, or others you regard as family but who are not legally defined as such, your Will must expressly include them. Otherwise, they may be excluded from inheritance.