Illegitimate Beneficiaries

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    With 45% of children being born outside of marriage illegitimacy raises not only questions of principle but also technical points on drafting.

    Although it is a matter for the testator to decide whether any illegitimate children should be included as beneficiaries under a Will if a drafter is asked for any advice the preference should be to include them according to James Kessler QC.

    Not only is this reflective of the ‘modern world’ but has a practical advantage. Parents are under a legal obligation to maintain their children, whether they are legitimate or not.

    Protection is available to trustees however where the existence of an illegitimate child is unknown at the time of distribution. This was previously given by statute in s.17 Family Law Reform Act 1969 but this was repealed by a later Act. Protection can now be given by including specific wording in a trust.

    Since 1970, if illegitimate children are to be included as beneficiaries then no specific wording is required, The words ‘child’ and ‘descendent’ are read to include children born both within a marriage and outside.

    If illegitimate children are to be excluded Kessler recommends the following wording: ‘In this settlement references to family relationships shall be construed as if the Family Reform Acts 1969 and 1987 had not been enacted’.

    This avoids the use of the term ‘illegitimate’ which can be seen to be offensive.

    Where a child is adopted by a couple or person that child is considered a legitimate child of the couple, even where they are not married.

    Other Provisions The standard term ‘children’ does not include step children and specific wording must be used if step children are to be included as beneficiaries.

    Where a child is born by assisted reproduction the woman who gives birth to the child is regarded as the mother and, where a donor is used and the woman is married, the husband is considered to be the father (unless he did not consent to the treatment).

    Children born by surrogacy are allowed a ‘fast track’ adoption under the Human Fertilization and Embryology Act 1990 but prior to the adoption the woman giving birth to the child is considered to be the mother. In these cases it is advisable to provide a definition of ‘children’ to specifically include those born by surrogacy.

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