Legal News | 19.02.26

Wills and Surrogacy: Avoiding Unintended Consequences

The recent case of Cator v Thynn (2026 EWHC 209 (Ch)) has brought renewed attention to the complexities that can arise when Wills and trusts intersect with modern family structures —particularly surrogacy.

At the heart of the case was a reminder of the common-law principle: a child born through surrogacy is not recognised as a ‘legitimate’ child under English law. In Cator, this meant that the child of the principal beneficiary could not benefit from three family trusts and so Court approval was sought to remedy the situation.

Surrogacy and Will drafting

Surrogacy arrangements often involve a period—sometimes months—between birth and the making of a parental order in favour of the child’s intended parents. If an intended parent (or surrogate mother) dies during that window, the legal position can become unexpectedly complicated and various issues may arise:

• the surrogate mother may remain the legal mother of the child;
• the child born through surrogacy may not qualify as a child or issue of their intended parent and therefore have no automatic legal right to claim from their intended parent’s estate;
• guardianship arrangements may be unclear or unworkable; and
• if the surrogate mother dies, the surrogate child may unexpectedly inherit a share of the mother’s estate.

How a well‑drafted Will can help

To help alleviate some of these issues, careful thought should be given to the surrogate mother’s Will as well as the Wills of the intended parents. Amongst other things, those Wills should:

• include an expanded definition of children in the Will to ensure that children born through surrogacy (or other assisted reproductive methods) are not inadvertently excluded;
• specifically name the child in the intended parents’ Wills;
• expressly exclude the child from the surrogate mother’s Will if that is the intention; and
• appoint the intended parents as the guardians for the child in the surrogate mother’s Will, if the surrogate mother should die before a parental order is made.

 These measures are simple to implement but may make an enormous difference in practice. If you would like to discuss your own Will or obtain further advice, please contact the Private Client Team at wealth@wansbroughs.com.