Today’s blog was written by Karen La Caprara, Counsel, at Fasken LLP.

In my last blog post “Modern Families: References to Children and Issue in Wills – All About Estates”, I discussed the meaning of “children” and “issue” for the purpose of determining the beneficiaries of an estate where a Will refers to such classes of beneficiaries. I applied the applicable Ontario legislation to some of the characters from the series “Modern Family” to consider who does and doesn’t fall into such classes. This post goes one step further to discuss what kind of additions, restrictions, or clarifications would be appropriate to include in the definition of “child” and “issue” in Jay Pritchett’s Will (assuming the application of Ontario law).

Jay has two adult children, Claire and Mitchell, and one minor child, Joe, who all clearly fall within the applicable legislated meaning of his children. Jay also has a stepchild, Manny, who would not fall within such a definition. Accordingly, if Jay would like to treat Manny as one of his children for the purposes of interpreting his Will, the Will drafter will need to expand the definition of who Jay’s children and issue are. This could be done in a few ways. One way would be to include a provision that incorporates the Children’s Law Reform Act, R.S.O. 1990, c. C.12, and the Succession Law Reform Act, R.S.O. 1990, c. S.26, in so far as they define who is and is not a child of a person, followed by a broadening of those provisions such as:

“Notwithstanding the foregoing, for all purposes of this Will, a stepchild and their issue shall be included as a child and issue, as the case may be, of their stepparent.”

This should effectively lead to the treatment of Manny as one of Jay’s children and Manny’s children as Jay’s issue (where there is a giftover to Jay’s children’s issue if a child is predeceased or there is a gift to Jay’s grandchildren). However, it may be overly broad and could lead to some unintended beneficiaries down the line (quite often, stepchildren are not intended to be treated as children). For this reason, it would likely be preferable to instead expand the category by adding Manny and his issue explicitly with, for example:

“Notwithstanding the foregoing, for all purposes of this Will, my stepchild Manny shall be considered one of my children and issue, and Manny’s children and issue shall be considered my issue.”

Jay’s son Mitchell has two adopted children, Lily and Rex. The applicable legislation expressly includes adopted children as the children and issue of their adoptive parents and, by way of that relationship, Lily and Rex would be included as Jay’s issue for the purposes of his Will. Still, it can be helpful to clarify this inclusion, particularly where there are many different family members and potential beneficiaries, a sizable estate, and potential conflicting interests between family members in their capacity as executors versus in their capacity as beneficiaries. Jay’s Will drafter could include a statement in the child and issue interpretation provision to confirm that it is the testator’s intention that adopted children be considered the children and issue of their adoptive parents. Alternatively, they could specifically refer to Lily and Rex by adding something such as:

“I confirm that, for all purposes of this Will, it is my intention that Lily and Rex and their children and issue be included as my issue and as the children and issue of my son Mitchell.”

Either option works.

For those that have watched Modern Family, you’ll know that Jay is quite a bit older than his second spouse, Gloria. In fact, Gloria is close in age to Jay’s adult children from his first marriage. Even Manny is quite a bit older than Joe. What if Gloria wants to have a second child with Jay so that Joe will have a sibling close to his age and what if Jay agrees to the storage of his reproductive genetic material for this purpose? If Gloria uses that material to conceive another child after Jay’s death and she does so in accordance with the legislated requirements relating to consent, notice, and timing, such a child who is both conceived and born after Jay’s death would be considered Jay’s child and issue for the purposes of his Will (assuming his Will is silent on the meaning of child and issue or if it incorporates the related legislated provisions).

The legislated provisions are also inclusive of posthumously conceived children beyond those of the testator. In certain circumstances, the testator might consider that to be overly broad or be concerned that it can lead to a delay in the administration of their estate. Assume, for example, Jay’s Will provides for a gift to all of his grandchildren alive at the date of his death, with a giftover to the surviving issue of any predeceased grandchild. Assume also that Jay’s granddaughter Haley dies in a tragic car accident and shortly thereafter Jay dies suddenly of a heart attack. The gift under Jay’s Will that would have gone to Haley if she were alive will instead be divided between her twins, Poppy and George. What though if Haley and her spouse Dylan had saved reproductive material? If Dylan decides to use that material to have more children after Haley’s death (and meets the requirements in the legislation), the distribution of the gift to Haley’s children could be delayed for up to three years after her death (or longer if a court directs) in order to determine whether the gift in Jay’s Will is to be divided between the twins alone or among the twins and any posthumously conceived children of Haley’s. To avoid this delay and/or gift to children who are unknown to Jay and Haley (if that is Jay’s intent), Jay’s Will drafter could add a limitation to the general incorporation of the applicable legislation, such as:

“Notwithstanding the foregoing, except in the case of a child of mine, a child who is conceived after the death of a person referred to in this Will and is not alive on the date of my death or within 10 months after the date of my death, shall not be considered a child of such person for the purposes of this Will.”

This modification to the definition would include posthumously conceived children of Jay’s (if the legislated requirements are satisfied) and posthumously conceived children of another person referenced in the Will (e.g. Haley) if such posthumously conceived children were born before or at least conceived before Jay’s death (e.g. Haley’s posthumously conceived child if Haley instead died well before Jay and such child was conceived and possibly born prior to Jay’s death). This limitation can be revised in various ways to suit the circumstances and intentions of the testator.

When thinking about how children and issue are to be interpreted, it is also critical to keep in mind the date that such children or issue need to be alive in order to qualify for a gift to that class of beneficiaries. This is often the date of death of the testator or another person referred to in the Will, or the date that a testamentary trust terminates. If Jay’s Will includes a particular gift to “my children who are alive on the date of my death” and if Gloria is pregnant on the date of his death, such child of his born after his death should be considered to be Jay’s child but also, for the purpose of the Will, should be considered to be alive on the date of Jay’s death in order to satisfy the gift condition of being “alive on the date of [Jay’s] death” (even though they have not yet been born, and possibly not yet conceived on Jay’s death in the case where posthumously conceived children are to be included). The Will drafter should include language to that effect.

Just as modern families come in many forms, so too do the possible meanings of children and issue in your Will. Be sure to discuss the details and anticipated growth of your family tree with your estate planning professionals so they can be sure to include any necessary modifications to the meaning of children and issue in your Will. Thanks for reading.