Who Counts as a “Grandchild” in Your Will? A Critical Ontario Estate Planning Question

Understanding inheritance rights in blended families

When it comes to estate planning in blended families, one of the most frequently misunderstood issues involves the definition of “grandchild” in wills. A recent case perfectly illustrates why precise language matters more than family bonds when it comes to inheritance.

The Scenario: When Family Relationships Don’t Match Legal Definitions

Consider this common situation: A man in his second marriage creates a will stating that his estate should pass to his “grandchildren equally.” His family includes:

• His biological son from his first marriage, who has one child (the biological grandchild)
• His second wife’s daughter from her previous marriage, who has three children
• The daughter was never legally adopted by the husband

While this man may consider all four children his grandchildren in his heart, Ontario law takes a different view.

The Legal Reality: Blood and Adoption Trump Love

Under Ontario’s Succession Law Reform Act and established case law, the term “grandchildren” in a will has a specific legal meaning. Without clear language to the contrary, courts interpret “grandchildren” to include only:

1. Biological grandchildren – children of the testator’s biological children
2. Legally adopted grandchildren – children of the testator’s legally adopted children, or biological children who have been legally adopted by the testator’s children (“testator’s children> means biological children).

In our scenario, this means only the one biological grandchild (son of the biological son) would inherit under the will’s current language. The three children of the second wife’s daughter would be excluded, despite the testator’s likely intention to include them.

Why This Happens: The Importance of Precise Will Language

This issue arises because:

• Legal definitions prevail over intentions – Courts must follow legal definitions unless the will clearly indicates otherwise
• No formal adoption occurred – The second wife’s daughter was never legally adopted, so her children aren’t legal grandchildren
• Ambiguous language creates problems – Terms like “grandchildren” seem clear but carry specific legal meanings

The Financial Impact

In this case, instead of the estate being divided four ways (25% each), it would go entirely to the one biological grandchild. This likely contradicts the testator’s intentions and creates significant family discord.

How to Avoid This Problem

To ensure your intentions are followed, consider these approaches:

1. Use Specific Names

Instead of “grandchildren,” list each intended beneficiary by name:

• “To John Smith Jr., Sarah Johnson, Michael Johnson, and David Johnson, equally”

2. Define Your Terms

Include a definition clause in your will:

• “For the purposes of this will, ‘grandchildren’ includes all children of my biological and adopted children, as well as the children of [specific name], whom I consider my daughter”

3. Include Step-Relationships Explicitly

Use clear, inclusive language:

• “To all my grandchildren, including step-grandchildren and children of my step-children”

4. Consider Individual Bequests

Make separate, specific bequests to ensure clarity:

• “To the children of my step-daughter [name]: $X to each child”

The Broader Lesson for Blended Families

This case highlights a crucial principle: family relationships in your heart don’t automatically translate to legal relationships in your will. In blended families, it’s essential to:

• Never assume legal definitions match your family reality
• Be explicit about who you want to benefit
• Regularly review and update your will as family circumstances change
• Work with an experienced estate lawyer who understands these nuances

Moving Forward

If you’re in a blended family situation, don’t let assumptions about “family” jeopardize your estate planning goals. The emotional cost of unintended inheritance outcomes often far exceeds the legal cost of getting your will right the first time.

Remember: clear communication in your will today prevents family conflicts tomorrow. When it comes to inheritance, love may make a family, but law determines the legacy.

At SmartWills, we help Ontario families navigate complex estate planning challenges. If you have questions about inheritance rights in blended families, contact us for a consultation.