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.
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.