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