A “gift over” in a will is when a willmaker has provided that if their intended beneficiary dies or does not survive them within the required time by law, the gift passes over to a substitute beneficiary they have nominated instead to inherit. The substituted beneficiary is really a second recipient chosen to inherit or take the gift should an event occur, here the death of the first or primary beneficiary. Other conditions and contingencies may apply depending on what the will says and surrounding circumstances. See infographic.
“Issue” is a technical legal term used in succession and inheritance law and some discretionary trusts. “Issue” is not defined in wills and succession legislation even though it occurs in some legislative provisions. Its legal meaning has been developed under the general (common) law going back to at least 16th century English cases.
The High Court has said that ‘issue’ is a word with a clear prima facie legal meaning. It means descendants or progeny, and is not limited to children.1,2Prima facie means at first instance.
Under the general law the “issue” of a person means all of their lineal descendants by blood of every degree, including their children. That is, your “issue” includes not just your children but all of your lineal descendants of all degrees – your children, grandchildren, great-children and so down the line without limit. See infographics. This is the primary legal meaning of issue.
Adopted children – while the primary meaning of issue is about blood relations, legally adopted children can be described as “issue” in certain circumstances and by the operation of the adoption statutes.
Contrary intention are words used in Australian succession legislation on wills and the administration of deceased estates. Some examples are given below of the range of matters where the law allows for a willmaker to express a contrary intention in their will to the statutory rule.
Where a provision of succession legislation contains these words, it means that the statutory rule can be displaced, that is not apply in the administration of their estate, if a willmaker has expressed a different intention on the matter in their will as to what they want to have happen. A contrary intention may be expressed in a will or appear in a will.
When no will is left by a deceased person they are said to have died intestate. Dying intestate means that their property and things are distributed according to the legal rules on intestacy made by the Parliament in the state or territory where they lived. Sometimes a person may have left a will, but for some reason a problem arises so that not all of the property can be disposed of.
Sometimes it is not until after a will-maker dies, when their executor is applying for a grant of probate, or seeking to administer the estate, that some kind of administrative mistake is discovered in the will. For example words used in the will, or some mis-description, operate to prevent the will-maker’s intentions from being put into effect. Resolving the problem usually requires making an application to the Court. This causes expense and delay.
It is unfortunate that such genuine clerical mistakes or ambiguities are not picked up during will-making. Can anything be done when they are discovered after death? Can they be fixed so as to preserve what the deceased intended to happen? Or will it result in an intestacy?
A grant of probate is the document issued by the Court of Probate after the examination process. A type of grant of representation, it is an order of the Court certifying that the executor (or personal representative) named in the document is lawfully authorised to administer the estate of the deceased person. More →
Left out of a will or seeking more – who can apply for provision?
Family provision laws were introduced to remedy situations where willmakers failed to leave adequate provision for the proper maintenance, support and advancement in life for close family, usually spouses, partners and children.
The legislation gives the court1 discretionary power to order provision from a deceased person’s estate, where found to be inadequate, to “eligible” applicants, under certain circumstances. It is not automatic.
What does the ‘residue’ or ‘to give the residue of my estate’ mean?
The residue of a deceased person’s estate is what is left over after the payment of all expenses in connection with the estate.
Expenses include payment of the funeral, costs incurred in the administration of the estate, payment of the deceased’s debts, the discharge of any liabilities of the deceased, and the distribution of any specific gifts made under their will.
The residue or residuary estate is property of the deceased not disposed of by the terms of their will.
Per stirpes and per capita distribution of a deceased estate
Per stirpes and per capitaare Latin terms referring to the ways in which a person’s estate can be distributed among their descendants, their children, grandchildren and so on. A person’s descendants are often referred to as “issue” in succession and inheritance law. As the term ‘issue’ refers to more family than just ‘children’ this can lead to confusion when interpreting what a will-maker intended. For more see this article on using the words “issue” and “children” in wills.
Per stirpes and per capita are different ways of distributing property among a group or class of people, either under a will or when there isn’t one. They address the situation where one or more family descendants of a person have predeceased them. Per stirpes means ‘by the stocks, roots or branch” and per capita means ‘by the head’, by each individual person in equal shares. More →
“Issue” is a legal word often used in wills regarding estate distribution
Key Points:“Issue” is a legal term meaning all of a person’s lineal descendants, including but not limited to their children. This difference is important in interpreting distribution and substitution clauses in wills. Take care when using the words “children” and “issue” in a will and seek professional advice.
Language can be confusing. Words like ‘issue’ and ‘children’, may be thought of in one way by some, but be interpreted differently by others, see graphic. They have the potential to generate different interpretations and outcomes. The problems may not arise until later, leaving the question what did the deceased really mean? This article is about the meaning of issue in wills. More →