It is common for people to leave the rest and residue of their estate to their children or grandchildren in their Will. While some identify their children and grandchildren by name, others simply refer to them collectively as those of “my children” or “my grandchildren” who survive me. 

While referring to your intended beneficiaries collectively as “my children” or “my grandchildren” may ensure no one is excluded (and avoid having to update your Will if a new child or grandchild is born). It could create complications when administering your estate if children or grandchildren are being born around the time of your death. 

The recent decision in Re Lapalme; Daley v Leeton [2019] VSC 534 considered just that, as the deceased in this case left her residuary estate in her Will to “those of my grandchildren as shall survive me and attain the age of eighteen (18) years as tenants in common in equal shares”. 

At the date of the Will, the deceased had one grandchild. At the date of her death, she had three grandchildren, and at the date, the application for a grant of probate was made, she had five grandchildren. 

The Court had to consider whether the collective phrase “my grandchildren” included those grandchildren born after her death. 

The Court found that to ‘survive’ the testator means to outlive the testator, and further considered the deceased’s circumstances at the time the Will was signed, finding that it was unlikely she would have intended to exclude grandchildren born after her death. The Court concluded that all of the deceased’s grandchildren, born before or after her death, were entitled to a share in her estate upon turning 18 years old. Still, any grandchildren born after the first grandchild turns 18 will be excluded per the class closing principle.

Therefore, you should consult a solicitor when you are conducting your estate planning and considering whom you would like to benefit from your estate to avoid mistakenly excluding anyone whom you would like to benefit from your estate, such as future grandchildren or other family members. 

 

**Assisted by; Caroline Reilly**

 

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