When I draft wills and trusts I always include definitions of "child" and "descendant:"
"For purposes hereof, the term "child," however expressed, shall refer to any descendant in the first degree of the parent designated. The term "descendant," however expressed, shall include (i) children or more remote descendants, either naturally born or legally adopted, but only if such descendant was adopted prior to attaining the age of eighteen (18) years, it being my intent that such adoption shall have the same effect as if such individual had been naturally born to the adopting parent or parents; (ii) legitimate descendants only; and (iii) any child or remote descendant in gestation at any time specified in connection with the administration, division or distribution of any portion of my estate."
The thinking is that if my son adopts his new (much too young) girl-friend, Miss Gold Digger – she is not a descendant of mine.
But what if the document does not address the issue?
Professor Gerry Beyer at Wills, Trusts & Estates Prof Blog reports on the case of In re Ray Ellison Grandchildren Trust, 261 S.W.3d 111 (Tex. App.—San Antonio 2008, pet. denied, rehearing filed), Settlor established a trust for the “descendants” of his children. A dispute arose as to whether descendants included the adopted children of his son who were adopted after reaching adulthood. The trial and appellate courts agreed that these individuals were not within the class of individuals who would qualify as descendants.
In Ellison, the deceased grantor’s son adopted the three children of his second wife when they were adults – ages 39, 37 and 36. His two children from his first marriage didn’t want to share with these 3 adoptees.
Surprisingly, the court held, through some very strained reasoning, that the adopted children are not included. We shall see what happens on appeal.
In the meantime – don’t leave it to litigation – include a definition when you draft.