Adopted Great-Grandchildren

Parker v. Parker, 131 S.W.3d 524 (Tex. App.—Fort Worth 2004, pet. denied).


In a case with a highly complex procedural history, the key issue was whether adopted great-grandchildren are eligible beneficiaries of certain testamentary trusts. Both the trial and appellate courts agreed that they were eligible beneficiaries.

The court recognized that it was bound by the law as it existed at the time the will was executed which was the 1931 version of the Texas adoption statute that presumed that adopted children do not take under a will executed by a third person unless the testator provided otherwise in the will. Testator stated in the will that grandchildren had to be “born of [the child’s] body” to qualify as beneficiaries. However, great-grandchildren were not subject to same limitation. Instead, the will provided that “the children, and their heirs, of any deceased child of [the child’s] body [are] entitled to their parent’s portion per stirpes.” Because the testator omitted the “of the body” language from this gift over to great-grandchildren, testator intended to include adopted great-grandchildren and the otherwise applicable presumption against the inclusion of adopted individuals did not apply. The court recognized that it might not be logical for the testator to exclude adopted grandchildren but include adopted great-grandchildren. However, the court was unwilling to redraft the will to carry out a presumed intent.

Moral: Wills and trusts must be carefully drafted to carry out the client’s intent. If a client wishes to exclude non-blood descendants from taking, a clear, unambiguous statement should be included in the will such as, “Under no circumstances may a non-blood related person receive property under this will as a child, grandchild, great-grandchild, or other descendant.”