The meaning of ‘children’ in Private Client
The meaning of ‘children’ in Private Client

The following Wills & Probate guidance note provides comprehensive and up to date legal information covering:

  • The meaning of ‘children’ in Private Client
  • Meaning of children, issue and descendants in drafting Wills and trusts
  • ‘Children’ in family provision claims (Inheritance (Provision for Family and Dependants) Act 1975 claims)
  • ‘Children’ in intestacy
  • Impact of private international law
  • Changes to gender and gender recognition
  • Children born through surrogacy
  • Children born through assisted reproduction techniques
  • Use of DNA testing to establish parentage

The meaning of words commonly found in Private Client drafting and legislation which are intended to refer to children can differ depending on the context. This Practice Note sets outs the meaning of commonly encountered references to children in Private Client work.

Meaning of children, issue and descendants in drafting Wills and trusts

Children

‘Children’ generally means the first generation of legitimate descendants, and not grandchildren or remoter descendants. ‘Children’ will always at least include all children born before the death of the testator (Goodwyn v Goodwyn (1748) 1 Ves. Sen. 226 (not reported by LexisNexis®)).

In the case of dispositions made on or after 1 January 1970, illegitimate children are, on the face of it, included, but excluded from dispositions made before that date. See the ‘Illegitimacy’ section below.

Depending on the context and admissible evidence, the term ‘children’ may also include other generations (up to the whole line) of descendants, step-children (Re Jeans, Upton v Jeans (1895) 72 LT 835 (not reported by LexisNexis®)) and adopted children (Barnes Estate v Wilson (1992) 91 DLR (4th) 22 (not reported by LexisNexis®)).

Children from any marriage are included even if the testator does not contemplate a second marriage. Children of a previous marriage can be excluded depending on the context (eg where some children from a former marriage are named but others are