Last week, the New South Wales Supreme Court considered the issue whether the words “my children”, when used in the context of the deceased’s Will, included a child that the deceased adopted out shortly after he was born (see John Hamilton Condon v Simon Anthony Tonkinn  NSWSC 449 (13 April 2018)).
The deceased, Margaret Condon, made her last Will on 12 October 1998, within which she left her estate to “such of my children as shall survive me”. The deceased and her husband (who was also appointed as the executor of her Will) were married in 1980 and in 1982, they had a child, Nicole. The deceased’s husband and daughter were not aware that the deceased had given birth in 1975 to a son, Simon, who was adopted out when he was 17 days old.
In 2004, Simon received information about his adoption and contacted the deceased in 2006.
In considering whether the words “my children” included the adopted son, the Court must try to ascertain the intention of the deceased – should they take a literal interpretation of the words “my children” (which would of course include the adopted son), or should they look at the most likely way that the deceased intended it to be construed (that is, to only refer to her daughter).
In this case, the Court noted that:
- the son was adopted out at only 17 days of age,
- there was no relationship or contact between the deceased and her son prior to the making of the Will,
- there is no evidence that any contact with her son was expected on the part of the deceased,
- her daughter was entirely financially dependant on her parents,
- neither her husband, daughter or solicitor were aware that her son existed.
In considering the above points, the Court made a declaration that the words “my children” were intended to refer to the daughter only. The Court ordered the son to pay his own Court costs, and the Estate’s costs were paid by the Estate.
Contact the team at Shire Legal if you have any questions about drafting your Will, or dealing with a deceased estate.