Publications - Estate planning

Step-Children and Wills

The NSW decision of Warton v Yeo[1], dealt with the construction and interpretation of a clause in a will, where the deceased (the “testator”) left a gift to his sister, “but if she should die before me then to such of her children as survive me and if more than one in equal shares”.

The sister predeceased the testator, leaving behind one biological child and four step-children, whom she had raised as her own children.

The question before the court was whether the term “children” included the four step-children.

The court had to attempt to interpret the intention of the testator, and in particular found that:

  • in the will, the testator referred to the biological child as “my nephew”, and to the step-children as “my step-children” and “my step-niece”;
  • the use of the prefix “step”, indicated that the testator purposely and intentionally made a distinction between the biological and step-children of his sister;
  • the fact that the testator’s sister referred to her child and step-children as her “children” in her will was irrelevant to the facts of this case;
  • “step-child” is not defined in the Succession Act (NSW) 2006;
  • guidance was obtained from the Succession Act (Qld) 1981[2], which contains a definition of “step-child”; and
  • the relationship of a niece or nephew are genetic and permanent, however the relationships of a step-niece or step-nephew may or may not be permanent.

Ultimately, the court decided that despite the reference to “such of her children”, the testator did not intend the step-children of his sister to be included in the term “children”. As such, the whole of the gift passed to the one biological child of the testator’s sister.

This case highlights the importance of obtaining competent legal advice and having a clear and well-drafted will. In this instance, the court case could have been avoided had the testator specifically included the full names of the beneficiaries in his will, or if there had been a definition of “children” included.

To ensure that an intended beneficiary is not mistakenly left out of your will, please contact our office to discuss your estate planning requirements.

[1] NSWSC 494 (29 April 2014)

[2] Section 40A – however the definition of “step child” relates to Part 4 only, namely family provision applications.

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