In a previous blog, I wrote about the need for specificity when drafting provisions that include a “spouse” of a particular person as a potential beneficiary of an estate or trust.
Attention is also needed to ensure that when a Will refers to terms such as “children” or “issue”, the persons included within these classes are those that the testator intends to benefit. This is particularly true in the current age, where there are an increasing number of different types of relationships and manners of having children.
Unless a contrary intention is shown in a Will, words such as “children” or “issue” will be deemed to include persons who were born outside of marriage as well as those born in marriage. However, including all children born outside of marriage as potential beneficiaries may not be the intention of the testator in every instance. Therefore, it is often prudent to include a clause in a Will that provides more specificity as to who will constitute “children” or “issue” of the testator or one or more named beneficiaries.
Care must be taken, however, that the clause used to define “children” or “issue” does not inadvertently exclude an individual that the testator does intend to benefit. Standard clauses often completely exclude all children or issue born outside marriage for all purposes of the Will. However, this may not be appropriate in certain circumstances, given the trend toward common law relationships and the fact that the clause could potentially apply to individuals born decades in to the future. As a result, it may be prudent in some circumstances to amend such clauses to include certain children born outside marriage, such as those that the parent has shown a demonstrated intention to treat as a child.
Further consideration will also be needed when drafting such clauses when potential beneficiaries may include children or issue who are born with the assistance of reproductive technologies. Future blogs may address some of these issues in more detail.
In brief, in order to avoid administrative complexity and potentially disappointed beneficiaries, specificity is important in the drafting of documentation giving effect to gifts to classes of persons such as “children” and “issue”.