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Issue and children in wills

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”.

 

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A person’s “issue” means all of their descendants or offspring, including their children. “Children” are their direct descendants only.

‘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’

Sometimes the term “issue” is used in a will in such a way that executors find it difficult to work out what the deceased intended at the time they made their will. Executors then may feel it necessary, depending on the circumstances of the case to approach the court to interpret the will.  This causes extra expense and delay in administering the estate.
In one such case the High Court found “issue” had been used in the will a number of times.  In one part of the will it covered remoter descendants (see infographic below).  Then in another the context showed only “children” were intended.  In other parts the testator’s meaning wasn’t clear at all.2 

 

Similarly in another case the Court found mixed meanings of “issue”.  In one clause it was found to mean all descendants (its legal meaning) but in another the testator’s words implied it was restricted to “children” only.3

 

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The High Court on the term issue

The High Court has said that “issue” in wills has a clear legal meaning:
“it means descendants or progeny”; it means children and includes all lineal descendants of every degree.4  
The term “issue” implies successive generations of parent and child relationships. It is not limited to “children” alone although it may include them along with remoter descendants. 

 

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Leaving a gift to the issue of A means that all of A’s children, grandchildren and beyond are entitled to share in that gift.

Statutory rules

Statutory rules deal with the construction of the provisions in wills making dispositions to issue and how they are to operate.5  The situation when a beneficiary who is issue of the will-maker has predeceased the will-maker is addressed.  And how requirements to survive with issue should be interpreted. The legislation also provides rules that where there is a contrary intention in a will, the statutory rules may not apply.

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