Issue is a legal term 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. See also: ‘‘My issue” – considering the meaning of issue in wills’.
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 article is about the meaning of issue in wills. Take care when using the words “children” and “issue” in a will and seek professional advice.
Issue has a wider meaning than just ‘children’.
As said above issue means all of your lineal descendants including your children (see graphic below). In legislation the term “issue” appears in provisions dealing with the construction of wills, when no will was left (intestacy) and also in some property legislation.
Giving to your “issue”
Leaving a gift to “issue” in a will can produce different outcomes as to who inherits compared to leaving it to just “children”.
‘Children’ has its usual or ordinary meaning
The meaning of “children” hardly needs mentioning. It is those direct offspring from their parents; the first generation. This is the ordinary meaning of “children”. It is this ordinary meaning which the court usually applies when it is required to interpret a will. Unless the language in the will makes it clear that the will-maker intended something different. When will-makers do this it is referred to as a ‘contrary intention‘.1
Making your intention clear
A willmaker needs to make their intention very clear if they intend something different to the ordinary meaning of a word. This can be done by defining the word in the will itself. Or 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 either at the end or at the beginning of the clause.
Whether issue means ‘children’ or ‘descendants’
The High Court on the term issue
“it means descendants or progeny”; it means children and includes all lineal descendants of every degree.4