Wills, Children and the Need for Specificity

13 JUL 2018


Have you ever considered whether the gifts you make to your children through your estate will in fact be shared by ALL of your children??

The answer from Acting Justice Emmett in John Hamilton Condon v Simon Anthony Tonkin [2018] NSWSC 449 is; it depends.

When Margaret Condon drafted her will in 1998, bequeathing the whole of her estate to “…such of my children as shall survive me…”, she was only in regular contact with her daughter Nicole.

Come 2006, however, Mrs Condon reinitiated contact with her son Simon (the Defendant), whom she had given up for adoption shortly after his birth in 1975.

Mrs Condon never drafted another will before she passed away in 2017, and the question for the Court in 2018 was whether the words “my children” included her son Simon, or just her daughter Nicole.

Emmett AJA held that; “as a general rule, a gift to “children” in a will imports legitimate children [only]. Whether it includes children other than legitimate children is a matter that might depend upon the background matrix of surrounding circumstances”.

In these circumstances, the word “children” in the will was held to refer to Nicole only, because;

  1. There was no relationship or contact between the Deceased and the defendant prior to the making of the Will;
  2. Nicole was entirely financially dependent on the Deceased; and
  3. At the time the will was drafted, neither the Executor, Nicole or the solicitor who drafted the will was aware that the defendant existed.

If Mrs Condon wanted the gift to be made to Simon as well, then she needed to have redrafted her Will stating her intention that this was the case or Simon needed to make good a range of propositions to give rise to an entitlement in her Estate.

For more information about how we can assist you with any Family Provisions Act or Wills & Estates disputes please contact Grant Butterfield on (02) 4626 5077 or gbutterfield@marsdens.net.au.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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