Can an estate be distributed where the will gives gifts to unborn beneficiaries?

  • The will has to be interpreted to give effect to the wishes of the testator even when the likelihood of unborn beneficiaries is very small.
  • Money has to be set aside for the unborn beneficiaries.
  • If no further beneficiaries are born, the existing beneficiaries share the money that has been set aside.

We represented the daughters of the deceased in Re Mackay Estate. The will distributed part of the estate upon the death or remarriage of the widow.  The money was to be given to two daughters and the grandchildren.

We produced evidence that our clients were not going to have any more children and applied to have the money paid out now.  The Public Guardian and Trustee argued that there was still the possibility that our clients could adopt children.

The judge decided that although it was unlikely that other grandchildren would be born, the possibility of adoption existed.  There was little practical difficulty in setting aside appropriate funds from the gift to provide for the potential adopted grandchildren.  If any were adopted, the money set aside would be paid to them.  If there were none, then on the death or remarriage of the deceased’s widow, the money would be distributed to the existing grandchildren.

If you need help understanding what the will means, call us.