Definition Of ‘Child’ For The Purpose Of Will Writing And Estate Planning

As a hot topic of legal debate, this article is only intended to give some insight into the definition of ‘child’ in broad terms, and not as detailed guidance.

Loosely speaking, in everyday use of the word ‘child’, we tend to mean the biological child of a person (P), P’s adopted child, P’s spouse’s child or otherwise P’s stepchild, P’s child that was conceived through fertility treatment or P’s child that was born after P’s death.

We recognise that some people debate whether an illegitimate child is P’s child in everyday parlance, however, this article attempts to look at the legal definition for the purpose of writing wills and estate planning.

Firstly, regarding wills and trusts, the will or trust document can specify precisely what references to children mean, however if they remain silent on this point or P died without leaving a valid will, the statutory position applies.

If the will or trust document expressly defines children, P’s intention becomes clearer.

If there is no express definition or there is no valid will, the following general law applies:

• It is presumed that the father of a child born to a married woman is the father unless rebuttable by facts. This general law does not apply to a woman married or in a civil partnership with another woman.
• No distinction is made between legitimate and illegitimate children for wills and trusts made, or indeed for intestate deaths, on or after 4 April 1988 as a result of The Family Law Reform Act 1987.
• Adopted children are treated as the child of P from the date of adoption. Adopting the child of your same sex partner can generally only be achieved through same sex marriage or civil partnership, although special rules apply for female civil partners and same sex couples conceiving through fertility treatment.

Some case law exists where consideration was had as to the European Convention on Human Rights, implemented in UK law by The Human Rights Act 1998. These cases looked at whether adopted children would benefit from a trust whereby the trust assets were left for a class of beneficiaries. Article 14 of the European Convention on Human Rights says that a person should not be discriminated against on any grounds, including birth or other status, which has been taken to include discrimination between adopted and biological children.

• Some case law acts as authority on confirming the definition of step-children and step-grandchildren as P’s child in the legal sense. However, there is more authoritative case law that says unless there are express provisions to the contrary, step-children and step-grandchildren are not considered P’s children , unless adopted.
• Posthumous children, born after the parent died, are provided for as P’s child under the rules of intestacy through the Administration of Estates Act 1925 and under the Wills Act 1837, if the child was conceived before the death and en ventre sa mère (in the mother’s womb) at the death of P

If the definition is not covered by either of the above acts, then the position depends on case law.