Issue and children in wills

Keeping it in the family

The words “children” and “issue” are about classifying family relations into particular groups for passing on an inheritance by will. Care is needed when using these words.  This is because they are also about how many descendants are entitled to share in the inheritance.

Leaving a gift to issue widens the group of people who are entitled to take because it includes all descendants – children, grandchildren and beyond.  Therefore if it is intended that a particular gift be distributed only among children, then naming them in the will assists in clarifying that intention. 

 

Leaving a gift to grandchildren

In other circumstances it might be desired to leave a gift to be divided among grandchildren, including the possibility of any not yet born.  Grandchildren where known can be named.  Then adopt appropriate wording for the possibility of those not born at the time of will making so as to provide for them. 

 

There are different approaches to this depending on individual circumstances. Consult a solicitor specialising in wills and estate law for advice.  They can then tailor the wording of a will to the willmaker and their family circumstances. Leaving a gift to issue by will indicates a desire to continue to ‘keep it in the family’.  That is, keeping particular assets among blood relations  and away from those related by marriage (by affinity). 

 

Leaving a gift to ‘my children’

A gift to “my children” in a situation where there are adopted children, illegitimate children, or step-children could lead to problems and a potential claim where it is not made clear who is included (or not) in the will-maker’s meaning of ‘my children’. 

Distribution of issue

With time the issue of a person may potentially contain more individuals than their children.  However not all of their issue may be living when the will-maker dies.  In working out the distribution of the gift to a group, a question will then be did any of those leave children or issue themselves? 

 

Distribution per stirpes or per capita

Distributing an inheritance among a group of descendants can be done in basically two ways, per stirpes or per capita.  See this article on Distributing a deceased estate – about per stirpes and per capita for more information. The last thing anyone wants is expensive court proceedings causing stress and delay to resolve uncertainty on what the will-maker intended. A word used in a will should convey the same meaning throughout to avoid ambiguity.

 

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 they are 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.

 

As already mentioned, take care when using the words “children’ and “issue”.  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.  This can avoid 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.

B Stead BHS Legal Updated 9 June 2023.

Important notice: This article is intended for general interest and information only. It contains general information and is not specific to anyone’s personal circumstances. It is not legal advice nor should it be used as such. Always consult a legal practitioner for specialist legal advice specific to your needs and circumstances and rely upon that. While every effort is made to ensure accuracy at the time of writing applicable laws may change.

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