En Ventre Sa Mère: The Legal Rights of the Unborn Child for Wills and Estates in NSW

The phrase en ventre sa mère is a French term that translates to "in the mother's womb." It refers to an unborn child who is conceived but not yet born. This doctrine has significant legal implications in various areas of law, including inheritance rights under Wills and estates in New South Wales (NSW).

Dictionary and Legal Meaning

In a general sense, en ventre sa mère refers to an unborn child still in utero. From a legal perspective, this term applies when laws or legal instruments, such as Wills and trusts, confer rights upon a child who is yet to be born but has been conceived at the relevant time.

The common law, along with statutory provisions in NSW, recognises that an unborn child can, under certain circumstances, acquire legal rights as if they had already been born, provided they are later born alive.

Implications in Wills and Estates

Under NSW law, the doctrine of en ventre sa mère safeguards the inheritance rights of unborn children ensuring the intent of the testator is respected and unborn children are not unfairly disadvantaged due to their timing of birth. The Succession Act 2006 (NSW) governs the distribution of estates and the interpretation of Wills, incorporating principles that protect the interests of unborn children.

1. Rights Under a Will

When a testator (the person making the Will) makes a provision for their "children," or "issue," section 3(2) of the Succession Act 2006 (NSW)  includes an unborn child en ventre sa mère as having the same rights as a living child at the time of the testator’s death—provided the child is later born alive and hasn’t died within 30 days of the testator’s death.

For instance, if a Will states that "all my children shall inherit my estate in equal shares," a child conceived before but born after the testator’s death is entitled to an inheritance as though they had been alive at the time of death.

2. Rights Under Intestacy law

If a person dies without a Will (intestate), their estate is distributed according to the intestacy rules laid down in the Succession Act 2006 (NSW). This Act provides that the children of the deceased, including those en ventre sa mère, have the same entitlement to inherit as those who were already born at the time of death, provided they are later born alive and survives for at least 30 days after the testator’s death.

3. Per Stirpes and Per Capita Distribution

Wills often distribute assets per stirpes (by branch of the family or decendents) or per capita, such as "equally among all my grandchildren." The rule of en ventre sa mère ensures that a conceived but unborn grandchild is included in such distributions, assuming they are born alive.

Important conditions

Section 3(2) of the Succession Act 2006 (NSW) specifies that with regards to Wills and intestacy laws, the right of inheritance of a posthumous child is contingent upon the following conditions - 

• Time of pregnancy – To be included under the term “issue” or “children” in a Will, the time when the child was conceived is crucial. The pregnancy must commence before the testator’s death and the child must born alive.
• Survives “for at least 30 days after birth” – The child must survive for at least 30 days directly following the death of the testator, unless otherwise specified in the Will. Section 35 of the Succession Act 2006 (NSW) further adds that if a beneficiary does not survive for at least 30 days or the period specified in the Will after the death of testator it will be regarded as if they died before the testator. 

Does the doctrine “En Ventre Sa Mère” apply to Frozen Embryos?

While the legislation is silent on the topic, the issue was raised in a number of cases, where the courts held that that frozen embryos do not hold legal personhood until implanted and resulting in a live birth. However, if an embryo is conceived prior to the testator’s death but implanted and born alive afterward, is entitled to inheritance rights under the en ventre sa mère principle.

When do they receive inheritance?

Although the inheritance of an unborn child is ensured at their survival of 30 days after the death of testator, a child cannot take control of their inherited property until attaining the age of majority, i.e. 18 years. Until the beneficiary attains the legal age, or the age nominated by the Will-maker, the inherited property is held on trust by the executor of the Will or ongoing trustee of the estate.

The doctrine of en ventre sa mère reflects broader legal and ethical considerations in succession law, ensuring that the rights of the unborn are recognised and upheld in estate distribution.

For individuals drafting a Will, it is advisable to seek legal guidance to ensure that provisions for unborn children are explicitly addressed, avoiding ambiguity and ensuring compliance with NSW succession laws.

Contact us for a free thirty-minute consultation with an estate planning lawyer.

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