Legal Definitions - in being

The legal term in being refers to something or someone that currently exists or has come into existence. In its most straightforward sense, it means alive or present.

However, in specific areas of law, particularly property law, the definition expands to include individuals who have been conceived but are not yet born. This broader interpretation is vital for determining rights, interests, and the validity of legal arrangements that might extend over long periods or involve future generations.

• Example 1: Trust Distribution to Living Beneficiaries

  A family trust specifies that upon the youngest child reaching the age of 25, the trust's income will be distributed annually to "all nieces and nephews in being at that time."

  Explanation: This means only those nieces and nephews who are alive when the youngest child turns 25 will receive a share of the annual income. Any niece or nephew born after that specific date would not be considered "in being" for the purpose of this particular distribution and would not be eligible to receive income from the trust under this clause.

• Example 2: Inheritance for a Conceived Child

  A will dictates that a valuable antique collection is to be passed down to "the first grandchild in being at the time of my death who pursues a career in art history." At the time of the will-maker's passing, their son's wife is pregnant with their first child, who is later born and eventually becomes an art historian.

  Explanation: Even though the grandchild was not yet born when the will-maker died, they were already conceived. Under the legal definition of "in being" in property law, this conceived-but-unborn child would be considered "in being" at the time of the will-maker's death. This allows the child to be eligible to inherit the antique collection if they meet the other condition (pursuing a career in art history), ensuring that a child already on the way is not excluded from potential inheritance.