When is a child not a child? Secrets of the will revealed

Child’s play

We know that all our readers are terribly sensible folk who want to make sure that everything is in place for future generations when they die. Are we right? If so, you’ll either already have a will in place or you might be on the verge of making one. If you have children, it’s likely that you’ll want to make some sort gift in your will to them. And if you don’t have children, perhaps you’ll make provision for the children of other people connected to you.

Either way, there’s a rather technical point about how to define “children” in a will that trips up some families. Get it right, and you’re sorted. Get it wrong and there could be some rather hostile disputes within your family when you finally, er, well, when it finally becomes relevant.

Kids will be kids

How can the definition of “children” be so complicated? A child is a child. Surely anyone under the age of 18 who is your child is automatically included in the definition of children in a will?

Unfortunately, the answer isn’t a straightforward “yes” but a rather more frustrating “it depends”.

What sort of child do you mean? A legitimate child? An illegitimate child? A legitimated child? (Hang on, what is a legitimated child? For those not in the know, it’s a child whose parents aren’t married when they are born but get married later.) An adopted child? A step-child? The list goes on…

Meet Harry

To illustrate our point, we want to introduce you to Harry.

Harry has had a rather colourful life. He fathered a son (Arthur) in the heady days of his youth but didn’t continue a relationship with Arthur’s mother. After his rock and roll years, Harry settled down a bit and had a daughter (Betsy) with his long term girlfriend (Helen). After Betsy was born, Harry and Helen got married and had another child (Charlie) a few years later.

Things were going pretty well for Harry until he got mixed up with the wrong crowd and walked out on Helen. After a few troubled years, he got himself back on the straight and narrow and moved in with, and subsequently married, Henrietta, who had two children (David and Ellen) from a previous relationship.

Unfortunately, Harry and Henrietta weren’t able to have any children of their own, so they adopted a little boy called Finn.

No kidding

With six children, Harry thought it was probably time to stop and turned his attention to how he was going to divide up his estate when he died.

By our reckoning, Harry has:

  • Arthur – an illegitimate child
  • Betsy – a legitimated child
  • Charlie – a legitimate child
  • David – a step-child
  • Ellen – a step-child
  • Finn – an adopted child

If Harry referred to a particular child by name in his will – for example, “I give £5,000 to my son Charlie”, it’s pretty clear that Charlie will receive £5,000 and there can’t be much dispute about that on Harry’s death.

But, what if Harry’s will said, “I give £5,000 to each of my children”? Which of his six children stand to benefit?

It’s a wise child that knows its own father

Now for the legal bit – for wills made today, the following children are automatically included within the definition of “children”, if there’s no specific definition in the will itself:

  • Legitimate children
  • Illegitimate children
  • Legitimated children
  • Adopted children

It’s important to note that step-children are not automatically included unless the step-parent has adopted the child, or the will specifically says that they’re included.

So Arthur, Betsy, Charlie and Finn all receive £5,000 from Harry’s estate when he dies and David and Ellen receive nothing.

Simple. Except it’s not really that simple, because it’s not what Harry wants. Harry hasn’t seen Arthur since he was a baby and doesn’t really want to leave him anything. But he does want to make some provision for David and Ellen, his step-children. So how does he do this?

The answer is for Harry’s will to specify exactly who is included in the definition of children within the will. By doing this, Harry can exclude illegitimate children but include step-children. Arthur will then be excluded from benefitting, while David and Ellen will be included.

It doesn’t take a whizz-kid to get the definition right, but it does need to be thought about to make sure the right people benefit.

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