Who is included in a gift to your “children” in your Will?

It is common for parents to make provision for their children in their Wills as a group. For example, the Will might be worded:

“I give the whole of my estate to my children who survive me, and if more than one, in equal shares”.

Such a gift is known as a “class gift“.

The advantage of a class gift is that it covers all of your children regardless of whether they are alive at the date of your Will or born after the date of your Will.

The class is said to “close” at the date of your death. Only then are the members of the class finally known.

However, it is important to remember that a class gift covers all of your children, regardless of whether they are your biological children, ex-nuptial or adopted children. On the other hand, step-children or foster children are generally not included unless you specifically say so in the Will. Therefore a gift to your “children” as a class will include any ex-nuptial children or adopted children you may have. In fact, legislation in New South Wales makes it impossible to avoid this interpretation. The only way you can ensure certain children receive a share of your estate to the exclusion of others, is to name the children individually. The risk with this approach, however, is that you might have more children after the date of your Will and those children will not receive a share of your estate.

It is important to discuss these issues with your solicitor when giving instructions for a Will. Remember your Will needs to reflect your particular circumstances and objectives and careful drafting is required to achieve these aims.