Article on Defining Children and Descendants in Wills and Trusts

Susan N. Gary (Orlando J. and Marian H. Hollis Professor at theUniversity of Oregon School of Law) has published an article entitled, Definitions of Children and Descendants:Construing and Drafting Wills and Trust Documents, 5 Est. Plan. & Cmty.Prop. L.J. 283 (Summer 2013).  Providedbelow is a portion of her introduction:

Thisarticle focuses on the definitions of children and descendants in estateplanning documents.  When a will or trust uses one of these terms withoutdefining it, the default definition will most likely derive from the stateintestacy statute.  A testator or settlor may not understand what the statutorydefinition provides and may assume a definition based on a personalunderstanding of the terms.  Intestacy statutes differ from state to stateand may be amended over time, making comprehension more difficult for layindividuals.  Although a court may apply the intestacy statute in effectat the time and place a settlor created a trust, over time some changes maybecome so much a part of the definition that the court may apply the changes todocuments that pre-date the changes.

Giventhe differences in personal preferences and the continuing changes in thestatutory definitions of children and descendants, providing definitions inestate planning documents has become more important and more difficult. The need for personalized definitions reflects the fact that no one-size-fits-alldefinition of children or descendants will work.  An estate planner mustidentify appropriate questions and provide different drafting solutions basedon a client’s preferences.  Using one generic form will not provide thebest outcome for all clients.