Wills and trusts must be expertly drafted, with all intended beneficiaries clearly defined, to ensure the individual’s intentions are properly reflected.
One area that can lead to confusion is the meaning of ‘child’. And given the increasing complexity in modern family structures and relationships, it could become a more common issue. If you’re considering making a will, it is always best to instruct specialist wills solicitors to ensure your family and your wealth are protected.
The recent case of Marcus v Marcus [2025] EWHC 1695 perfectly illustrates the potential for costly disagreement concerning who is considered a ‘child’ in the context of a trust.
Who is a ‘child’?
When making a will or establishing a trust, you might identify your beneficiaries by name; or state a class of beneficiaries. For example, you may decide to give under your will ‘… £50,000 to my children in equal shares’.
Historically, ‘children’ was defined as the person’s legitimate children only. Following successive Acts of Parliament, ‘children’ now includes illegitimate and adopted children – though they can be expressly excluded. But the law does not yet formally recognise stepchildren (unless adopted) within the definition of ‘children’. If a testator wishes to include a step-child in their will, they will need to be clearly identified.
Widening the scope
In Marcus, gaming tycoon Stuart Marcus set up a £14.5m discretionary trust just before he died. The trust deed operated in favour of his wife and ‘children’. Stuart had two sons – Jonathan and Edward.
However, before his father’s death Edward discovered he was not in fact Stuart’s biological son, but the product of his mother’s affair. It wasn’t until years later when their relationship broke down, that Jonathan was eventually told they were half-brothers. He then attempted to exclude Edward as a trust beneficiary.
At issue was whether Edward was entitled to be included in the definition of ‘children’ in the trust deed, bearing in mind Stuart had considered him as his own son and treated him as such.
In 2024, a High Court judge made a declaration to the effect that both Jonathan and Edward qualified. While the law is clear on who is considered ‘children’, the judge allowed room for sufficient facts and circumstances “to lead the court to move away from the natural meaning of children”.
He found that the surrounding circumstances pointed overwhelmingly in favour of a wider meaning than mere biological child: “A reasonable person in knowledge of the relevant facts would readily conclude that when using ‘children’ Stuart intended this word to be understood as meaning Edward and Jonathan.”
The appeal judge agreed: “Stuart chose to use a word ‘children’ which, in the real world, described both Edward and Jonathan perfectly. This settlement was intended to operate in the real world, and in that real world (Stuart's real world in particular) Edward was Stuart's child. That conclusion is not displaced by the use of a class-defining word.”
What does this mean?
This is a fair and common sense decision, properly balancing the robust legal framework alongside the nature of modern family life and the clear intentions of the settlor himself. It is, however, case-specific and expert advice should always be taken.
For specialist advice from experienced wills and probate solicitors, contact Jack Robinson at jack.robinson@mfgsolicitors.com or call 01952 641651