Today’s post by Brianna Fable-Watson, Articling Student Gowling WLG (Canada) LLP

Estate planning documents often use broad phrases such as “to X’s children” “to grandchildren”, or “issue” when making gifts. While convenient, these terms can unintentionally create uncertainty especially when family circumstances change between the signing of the will and the testator’s death.

A Common Scenario

Rob, a thoughtful and organized individual, drafts his will. In it, he leaves shares of a company “to the issue of my cousin Thomas and his wife, Anna, who survive me.”

At the time Rob signs the Will, Thomas and Anna have two children. By the time Rob dies, they have three. A few years after Rob dies, Thomas and Anna welcome child number four.

Now the question becomes: Does this fourth children receive a share of the gift, or were they born too late?

The answer to this dilemma is layered.

What is a Class Gift?

A class gift is a gift to a group of people who are connected by a common characteristic rather than named individually. Common examples include “children,” “grandchildren,” or “issue.”

In our scenario, the gift is shares of a company, and the class is “the issue of Thomas and his wife Anna” who survive the testator.

When Does the Class Close? The Rule of Convenience

Even if a person fits the description of a class, that does not automatically mean they are entitled to take under the will. This is because class gifts are governed by the rule of convenience, which determines when membership in the class stops growing.

The General Rule

If the will or trust document does not specify otherwise, a class typically closes at the testator’s death. This means that only those who are:

• born, or
• conceived

at the time of the testator’s death are included. This rule exists to prevent gifts from remaining open indefinitely, which could delay distribution and create ongoing uncertainty.

Exceptions to the general rule

There are two common exceptions:

1) A class gift after a life interest

If a will leaves property “to X for life, then to X’s children,” the class of “X’s children” does not close until the death of X.

2) A class that must meet a condition

If a will provides, for example, “to all my grandchildren who reach the age of 21,” the class closes when the first person satisfies that condition, unless the document indicates otherwise.

So What About Child Number Four?

Returning to Rob’s situation:

• The will created a class gift to the “issue of my cousin Thomas and his wife, Anna who survive me.”
• At Rob’s death, Thomas and Anna had three children
• A fourth child was born several years after Rob passed away
• Rob’s will is silent on when the class closes, triggering the application of the rule of convenience.

Under the rule of convenience, the class closes at Rob’s death. Since the fourth child was neither alive nor conceived at that time, they are not included in the class and do not share in the gift.

Final Lessons: Wording Matters… Timing Matters Even More

Families grow and circumstances change, but gifts in a will do not automatically expand to include new family members unless the testator clearly says so.

When drafting or advising on an estate plan it’s essential to consider:

• Whether you want future-born children or grandchildren included;
• Whether a class should remain open after death;
• Whether a gift should depend on reaching an age or milestone.

Careful drafting can prevent confusion, delay and conflict sometimes many years after a loved one has passed away.