Recent Developments in Law: Can a stepchild be a grandchild in a Will?

As Society moves to more and more blended families, disputes over rights of inheritance under a Will are likely to escalate. The importance of plain English drafting in a Will cannot be understated.

The following is an example of a real-life situation which arose in a recent case in the Supreme Court of Victoria, namely Re Staughton; Grant v McMillan [2017].

The family structure and relevant facts were as follows:

1. Wills were made by a husband and wife in 1997. By 2016 both of the testators had then died;

2. At the time of death, the testators had two (2) surviving children of their own marriage, namely a daughter and a son;

3. Under their 1997 mutual Wills substantial benefits were conveyed to their children, but still leaving a residue. The residue in each of their estates (which comprised real estate and a considerable sum of money) was left to “…their grandchildren…”;

4. The daughter had married and was the mother of two (2) children; and

5. The son was not married at the time of the making of his Parents’ Wills and at that time had no children. However, in 2007 he married a woman who had two children from her previous marriage. Those children were obviously his stepchildren.

Relevant Issue to Determine

It was clear that the daughter’s natural children were “grandchildren” and entitled to benefit under the Wills of their grandparents. The Court had to decide whether the two (2) stepchildren of the deceased’s son were within the description of “grandchildren” under the Wills.

Wording of the Wills

The Wills were not well drafted and did not include a definition of intended words. The Victorian Supreme Court found that all of the words in the Wills should be given their ordinary wording, based upon community standards of interpretation.

The Court accepted evidence of the family relationships after the executions of the Wills in 1997 and found that it was the intention of the deceased Parents to widely construe the word “grandchild” and cover the possibility that their son may marry and later have his own children or may marry a woman who has her own children.

His Honour referred to a number of NSW case authorities (including Warton v Yeo [2015] and another case of Re Estate of Wright [2016]) which found that a description of the word “descendants” included step-grandchildren in it.

Accordingly, the Court found that the stepchildren were entitled to benefit under the Will and were covered by the description of “grandchildren” in each Will.

The residue of the Estate was to be divided in equal one-quarter (1/4) shares between the four (4) “grandchildren”.

Drafting your Will

These cases show how important it is for your Lawyer to properly consider all family relationships and future possibilities within that family structure. A Will should be drafted in clear terms to cover those possibilities.

If you need a Will prepared in our Firm, then you should make an appointment with either: