Wills and trusts often refer to beneficiaries in general terms, rather than specifically by name, for example, “I give £10,000 to each of my children”. This practice, whilst convenient and allowing for the possibility of the expansion of the class as a result of the birth of further children following the execution of the will or trust, can give rise to significant legal questions, particularly in the context of modern family structures. Understanding the legal meaning of "children" is therefore of critical importance for both private clients and their advisors.

The ordinary meaning of “children”

At common law, the term "children" was traditionally construed as referring to legitimate children only. Over time, this position has been modified by statute, so that references to "children" in wills and trusts now also include illegitimate, legitimated, and adopted children (unless expressly excluded). 

However, the statutory reforms have not extended to stepchildren. As a result, unless a will or trust expressly includes stepchildren, or the context clearly indicates that they were intended to be included, stepchildren are not ordinarily encompassed by the term “children.”

Marcus v Marcus

A recent High Court decision examined the construction of the term “children” in the context of a family trust, and whether its ordinary meaning could be displaced by contextual evidence to include an individual who was not the biological child of the settlor of the trust.

In Marcus v Marcus [2025] EWHC 1695, Stuart Marcus established a discretionary trust for the benefit of his “children”. Stuart and his wife, Patricia, had raised two boys, Jonathan and Edward, both of whom Stuart believed to be his biological sons. Unknown to Stuart, however, Edward was the result of an affair Patricia had during their marriage. Stuart died without learning the truth about Edward's parentage. Edward discovered the facts before Stuart's death, while Jonathan only learned of them several years after Stuart had died.

Following a breakdown in their relationship, Jonathan brought proceedings disputing Edward's entitlement to benefit from the trust, arguing that as a non-biological child, Edward did not fall within the meaning of "children" as used in the trust deed.

At first instance, the court acknowledged that the expression “children” does not usually include stepchildren but that the ordinary meaning could be displaced based on context. The Master noted that "the test for the court is to take the natural meaning of children and to consider what a reasonable person in possession of the facts and circumstances known or assumed by the parties at the time that the document was executed…would understand Stuart to have meant by the word. Put another way, are the facts and circumstances sufficient to lead the court to move away from the natural meaning of children?". On the facts, the Master found that the surrounding circumstances overwhelmingly supported a wider interpretation, such that Edward was included within the meaning of “children”.

Jonathan appealed, but the High Court upheld the original decision. The court noted that Stuart had chosen to use the word "children" in a context where, in the real world, both Jonathan and Edward were treated as his sons. The judgment stated:

"[Stuart] chose to use a word ("children") which, in the real world, described both Edward and Jonathan perfectly…Edward was treated for practical, familial and all other purposes as a biological child notwithstanding the true fact that he was not…[Stuart] intended the word to include Edward…with the result that Edward is one of the settlor's "children" on the true construction of the settlement."

It should be noted that a key tenet of Jonathan’s argument throughout this case was that the expression “children” should be viewed as a “term of art” which had acquired a strong presumptive meaning of biological children through successive rulings by the court. However, the court was not convinced that this was right. In any event, it was noted that a “term of art” (as with the “natural” meaning of a word) is capable of being displaced by context, so it was not necessary for the court to make an express ruling on this point. Going forwards, however, the court may well be increasingly reluctant to designate these types of expressions as “terms of art”, particularly in light of modern family structures. Furthermore, if the Law Commission’s recent proposal to introduce electronic wills is implemented by the Government (see our commentary), it is possible that this will result in an increase in the number of wills prepared without the involvement of a lawyer, and it may be unrealistic for the courts to expect testators to be aware of the definition of a so-called “term of art”.

Reading v Reading

Marcus v Marcus is not the first time that this issue has been examined by the court. In Reading v Reading [2015] EWHC 946, Mr Reading’s will included a nil-rate band trust which used the term “issue” in the definition of “Beneficiaries”. Mr Reading had two biological children and three stepchildren. The High Court concluded that, in the particular circumstances, the term included both his biological children and stepchildren, based on various factors including:

• the stepchildren (as well as the biological children) had been included specifically in a substitution clause in the will;
• Mr Reading had appointed a biological child and a stepchild as executors of the will and trustees of the nil-rate band trust; and
• a letter of wishes written by Mr Reading made it clear that he anticipated that the stepchildren would be able to benefit.

Practical implications and the importance of careful drafting

These decisions highlight the complexities that can arise in the interpretation of wills and trusts, particularly in the context of non-traditional family structures. They underscore the importance of clear and precise drafting to ensure that the intended class of beneficiaries is clearly identified. In particular, where a testator or settlor wishes to include (or confirm the exclusion of) stepchildren or others who might not fall within the ordinary legal meaning of “children,” this should be made explicit in the document to avoid future uncertainty and family disagreements.