Questions surrounding the interpretation of group gifts may be ripe for will construction and interpretation litigation. As with any will construction and interpretation litigation, if an interested party asks a court to resolve an ambiguity in a will, the court will first attempt to determine the testator’s actual intent for the group gift by considering extrinsic evidence. If the testator’s intent is not clear after considering such evidence, the court will then turn to rules of construction. Rules of construction are rules derived from state statutes and case law that attempt to set out what an ordinary individual in the testator’s position would have likely intended.
Who May Be Included in a Group?
An individual may find that a gift to a group or a class of people is ambiguous or may disagree with how the executor of the estate has interpreted the language of the will. For example, a will that leaves all of the testator’s property "to my children" without specifically naming those children may leave room for interpretation. Gifts that appear to be group gifts but list the members of the group ("to my children, Jasmine Lupin and Jonathan Lupin") are not considered group gifts and will probably not be found ambiguous.
A group gift to "my siblings" usually includes half-siblings, but not sisters- or brothers-in-law.
Sometimes state law defines a term used to describe a group, such as "children." (A state may use the term "issue," which means an individual’s direct descendants.) Adopted children are generally included within the term "children," but step-children are generally not included unless the will specifies otherwise. Children given up for adoption are usually no longer included because an adoption terminates the legal rights and obligations of a parent regarding that child. However, some states may include a child given up for adoption to a close relative (such as a step-parent) for the purposes of inheritance. Many states have also begun including children born outside marriage, but this may not be true for every state.
It is possible that a testator used a term defined by state law while intending a different interpretation of the word. For example, a will may leave property "to my descendants" without defining the term "descendants." State law most likely defines the term for probate purposes. For example, California defines "descendants" as children, grandchildren, and their lineal descendants of all generations. But what if the testator intended for the word "descendants" to describe not only their lineal descendants but also their collateral descendants, such as cousins? A probate court will probably require very strong extrinsic evidence to conclude that the testator intended to include cousins within "descendants." Otherwise, it will interpret the group gift by using the state law definition.
When Does a Group Close?
Naming groups, rather than specific individuals, allows a group to grow and change. This advantage is why many testators leave group gifts in the first place. The disadvantage, however, is that questions may arise as to who is included in the group and when exactly the group closes.
Groups usually include any group members born after the will was written and before the testator passed away. This means that a group gift "to my grandchildren" will include a grandchild whom the testator had when the will was written and a second grandchild whom the testator gained later in life, but not a third grandchild born after the testator died. Groups usually close once the testator dies, but there may be exceptions. For example, a will gifting a sum of money to a group of minor children to be kept in a trust until the children reach a certain age may allow a child born after the testator died to share in the gift. It is fairly well-accepted that a child conceived but not born before the testator died could fit into a group, but a different standard may apply to a child conceived through reproductive technology, especially if that child is born many years later.
Divorce, Death, and Other Common Events
Most states have laws dealing with common events affecting a will, such as the divorce of the testator or the death of a beneficiary. These laws were enacted to avoid unnecessary probate litigation.