A recent case dealt with the question of “who is a descendant?”  A will made a gift to the descendants of the testator’s son and daughter.   The testator added this phrase – “descendants living at this time are…” then named his grandchildren who were living at the time that he made the will. The grandchildren were the children of his son and daughter.  Years later, the son divorced his wife and married another woman.  He then adopted the two adult children of his new wife.

The question that the court had to answer was whether or not the two children adopted as adults were descendants under the will? 

The other descendants, including the children of the son from his first marriage, argued that the identification of descendants “living at this time” excluded the adopted adults. The adopted adults were living at the time the testator executed his will but were unknown to the testator.

The adopted adult children argued that there is a statute stating that the word descendants includes those who are adopted unless the will expressly excludes them.  They argued that naming some as descendants did not expressly exclude those adopted who were not named.  The court agreed.

The court ruled that identifying the grandchildren as “descendants living at this time …” did not expressly exclude the adopted adult children as required by the statute.

Although the court ruled that the language above did not exclude those adopted as adults, the court went on to exclude them from the will based on an old statute.  That statute has been amended.   Based on the court’s decision, if the will was written as it was today, the adopted adults would be included in the definition of descendants. 261/3111

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