“Issue” is a legal word often used in wills
Issue is a technical 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 interpreted differently by others, see the infographic. These words have the potential to generate different interpretations and outcomes. The danger is that these differences and their potential consequences may not arise until after the will maker has gone, leaving the question what did the deceased really mean? This is about the meaning of issue in wills.
“Issue” has a wider meaning than just “children”.
As said about, issue means all of your lineal descendants, including your children, (see graphic below). In state and territory succession legislation “issue” appears in provisions dealing with the construction of wills and intestacy, and also in some property legislation.
Leaving a gift to “issue” in a will can therefore produce different outcomes as to who inherits compared to leaving it to just “children”.
Meaning of “children” – is its usual or ordinary meaning
The meaning of “children” hardly needs mentioning. But it is those direct offspring from their parents, that is the first generation. This is the ordinary meaning of “children” and is that usually applied by a court if it is required to interpret a will – unless the language used in the will makes it clear the will-maker meant something different, referred to as a ‘contrary intention’.1
But this needs to be very clear, and this can be done by defining the word in the will itself. If there is more than one word needing definition, it may be worth setting out their intended meanings in a mini ‘dictionary’ to the will, not a common occurrence.
Whether “issue’ means “children” or “descendants”
The High Court
“it means descendants or progeny”; it means children and includes all lineal descendants of every degree.4
Keeping it in the family
“Children” and “issue” are about classifying family relations into particular groups for passing on an inheritance by will. It is also about how many descendants are entitled to take or share in the inheritance.
Leaving a gift to grandchildren
As time passes, the issue of a person may potentially contain more individuals than their children, although not all may be living when the will-maker dies. In working out the distribution of the gift to the group, a question will then be did any of those leave children or issue themselves?
Distribution per stirpes or per capita
Step-children, adopted children and illegitimate children
As the “issue” of a person are those with the same blood line step-children are normally excluded, unless specifically named to be included. More information on the inheritance rights of illegitimate or ex-nuptial children can be found here.
Adoption and status of children statutes
Adoption legislation makes adopted children the children of the adoptive parents and no longer a child of its natural parents. Status of Children legislation in the states and territories makes illegitimate children the same in law as legitimate children. Interpreting the words “child” or “children” in a will includes these children.
- Status of Children Act 1996 (NSW)
- Status of Children Act 1978 (QLD)
- Status of Children Act 1974 (VIC)
- Status of Children Act 1974(TAS)
- Status of Children Act 1978 (NT)
- Parentage Act 2004 (ACT), also the Wills Act 1968 (ACT)
- Wills Act 1970 (WA)
- Family Relationships Act 1975 (SA)
Take care when using the words “children’ and “issue” and seek professional legal advice. Care is needed in choice of words to achieve flexibility and intentions. Check that the terms and language in your will say what you mean without raising potential interpretation questions and the possibility of rectification by the court – if indeed at all.
1. G. E. Dal Pont & K F Mackie, Law of Succession, 2013.
2. Matthews v Williams (1941) 65 CLR 639.
3. Buick v Equity Trustees Executors and Agency Co. Ltd. (1957) 97 CLR 599.
4. Matthews v Williams (1941) 65 CLR 639, Buick v Equity Trustees Executors and Agency Co. Ltd. (1957) 97 CLR 599.
5. See Division 2 of the Succession Act 2006 (NSW) for example.
7 January 2014, updated 25 August 2020
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