In re Estate of Mzvk, No. 04-21-00533-CV, 2023 WL 3214572 (Tex. App.—San Antonio May 3, 2023, no pet. h.).
The testatrix’s will left the residuary of her estate “to my children” and then if a child predeceased, to that child’s descendants. The will also contained a provision stating that all references to “children” include the two children (referenced by name) who were alive when the testatrix executed the will. One of the testatrix’s children was already deceased when the testator executed her will. After the testator died, a dispute arose regarding whether the deceased child’s child was included as a residuary beneficiary. The children asserted that the “reference” provision was exclusive while the grandchild asserted that it did not exclude his father as a child merely because he was already dead.
Both the trial and San Antonio Court of Appeals agreed that the “reference” provision acted as a definition of the individuals intended to be included when the testatrix used the term children in the will. The court pointed out that the testatrix had already listed children, both living and deceased, in describing her family situation. The testatrix would have no reason to include another provision indicating the identity of her children and thus the “reference” provision acted as a definition of whom was encompassed when she used the term children in the will.
Moral: A definition of a term should be drafted with greater specificity to avoid interpretation issues. For example, instead of writing that the term children “includes” named individuals, state that the term children “means only” the named individuals unless the testator’s intent is to leave the class of children open to include deceased or afterborn children.