In re Estate of Tyner, 292 S.W.3d 179 (Tex. App.—Tyler 2009, no pet.).


Construction & Interpretation



Testator had three children, two biological children and one adopted child. Testator’s will defined “children” by naming only his two biological children and the term “descendants” to include these two children and their descendants. A later provision further defined “descendants” by indicating that descendants include adopted descendants. Testator’s predeceased adopted child’s biological child argued that this later provision brought her within the scope the term “descendants.” Both the trial and appellate courts rejected her claim.

The appellate court studied these two provisions and concluded that they were unambiguous. The first provision defined the individuals who would be deemed descendants (that is, the two named biological children and their descendants). The second provision expanded on the type of individuals who could qualify as their descendants, that is, both biological and adopted individuals. Accordingly, a child of Testator’s adopted child could not fit within the class of individuals encompassed by the term “descendants” in Testator’s will.

Moral: A definition of a term in a will such as “children” or “descendants” should expressly state both which individuals are included as well as which individuals are not included to avoid construction issues. In this case, Testator should have included statements such as “X, my adopted son, is not included in the definition of “child” and “Descendants of X are not included as my descendants.”