In a recent case of Re Staughton; Grant v McMillan  VSC 359, a question that came before the Court was whether the description of ‘grandchildren’ in a Will included ‘step-children’.
In that matter, which was decided by the Victorian Supreme Court, a couple, Mr and Mrs Staughton, made Wills in 1997 which left the residue of their estate to their grandchildren.
At the time of making Will, one child was married and had two daughters. The other, Nigel, was single and had no children. However, in 2007, Nigel got married to his wife who had two children, which were Nigel’s stepchildren.
As a result, Supreme Court was required to determine, as a question of the construction (or interpretation) of the Will, if Nigel’s stepchildren fell within the definition or description of ‘grandchildren’ in the testator’s Will.
The Court observed two prior appellate authorities where ‘children’ was said to include ‘step-children’. However, the Court was still required to determine the intention of the deceased as expressed in the Will, in light of the circumstances, rather than to consider community standards.
The Testator’s Will did not contain a specific textual indicator, however, that did not restrain a finding that the Testator intended anything other than the ordinary meaning of the word. The Court considered evidence of family relationships after the execution of the Will was relevant and admissible to determine a Testator’s intention. As a result, the Court determined that grandchild, included the son’s step-children, or the testators step-grandchildren.
However, you should be aware that ‘step-children’ do not automatically fall into the class of ‘children’, and therefore to avoid confusion in your Will, or to prevent a future dispute over the construction of your Will, it is important to make that distinction clear. This can be done by providing a definition of the word or describing exactly who you are referring to in your Will.
For more information, contact us to have a discussion with one of our wills and estates lawyers.