The primary legal meaning of “issue”
“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.
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.
“Issue” is a term used to describe a group of family members who, as beneficiaries are to share in a gift left to them by will. It can be found in describing beneficiaries under testamentary trusts and in family discretionary trusts.
Leaving a gift to issue or to “my issue” presumes in first instance to mean to all descendants of the person making the gift when they die. This is regardless of whether the person has issue being offspring from different generations. For example on the date of death the person making the gift may have a mix of children, grandchildren and great-grandchildren. But a ‘gift to issue’ without any words of limitation means the person intended that all of them are equally entitled to take a share in it.
It should be noted though, that this can be subject to anything else said in the will. You may not want all of your descendants, some yet unborn perhaps to be entitled to join in the gift. See more below on restricting the usual meaning of “issue”. Usually the gift is made on an equal per capita (per head) basis unless otherwise stated in the will.
The descendants of a person are their progeny, those on the same bloodline down the successive generations of that person, whether the relationship is natural or by adoption (as a consequence of adoption legislation). A descendant is a person related by blood to someone of a previous generation. A child has ‘descended’ from their parent for example.
Family who are not your “issue” are your siblings and their issue (your nieces, nephews, great nieces and nephews etc) and your cousins. These are collateral relatives. Even though collateral relatives share a common ancestor they descend alongside on different branch lines and are not within the meaning of “issue”. See infographic. Neither is a spouse, partner, former partners, in-laws “issue”.
Remote or remoter issue
Children are your closest degree of issue. Your grandchildren, great-grandchildren and so on are further away, are your more distant descendants and for convenience may be collectively referred to as being” remote issue” or your “remoter issue”. Phrases like “children and remoter issue” or “child, grandchild and remoter issue” legally mean the same as “issue”.
“Lawful issue” is a legal term that was commonly used in old wills long ago. The use of ‘lawful’ meant that only children born to married parents were entitled to inherit, those born out of wedlock, illegitimate or ex-nuptial children could not.
However in recognition of societal changes status of children and similar legislation has changed the law so that today illegitimate children, ex-nuptial children can inherit, read more here. For adopted children see below. “Lawful issue” today is interpreted to have the same meaning as “issue”. It should be noted though that while a willmaker may seek to exclude an ex-nuptial child in their will, it could lead to challenge later on.
For some willmakers the primary legal meaning of issue is too wide for their purposes. One aspect is that while leaving a gift to offspring (and potential offspring) it likely stays in the family but the prospect of all generations and many recipients being included may be undesirable. Is it possible to restrict the extensive meaning of “issue” in a will?
Can the primary legal meaning of issue be restricted in a will?
Courts have held that a testator may use a narrower concept when using the word “issue” so that application of its primary legal meaning of “issue” is restricted to limit the descendants to be included.
In other words the expansive legal meaning of issue will be applied in first instance to testamentary documents unless the deceased has expressed something different “.. by any sufficient indications appearing in the documents“..2. This should be clear from the wording in the will, the choice of words, the language used in the context of the will and surrounding circumstances at the time.
But before that restricted meaning will be applied Courts have also said that the will must clearly show, as reflected in the testamentary wording and overall context of the will, that it was the testator’s intention to use issue in a limited sense. As the High Court said:
“..before the word “issue” is restrained from “its legal and proper import” one must be satisfied “that the contents of the will demonstrate the testator to have intended to use it in a restricted sense”.1
Restricting the meaning – problems
However problems can arise when it is unclear what was really intended in using the word “issue”. Some may intend it mean children only and not to descendants beyond. Or the words ‘children’ and ‘issue’ are used interchangeably, or with one referring to the other. Did they mean the same or not? More on this can be read on issue and children in wills here.
A case in Queensland ended up in court to resolve what was intended by the choice of words used. The problem was that the gifts made were affected by whether “issue” was to be construed as limited to “children” instead of the expansive meaning of “children and remoter issue”. The Court found that when balancing the wording with the context of the whole will, the words used tended to indicate that the deceased intended “issue” to mean only “children”.3
Is the intention to limit the usual primary legal meaning of “issue” to benefit their (or another’s) children? If to children only, why not simply refer to “children”? Great care should be taken in doing so and in consultation with an experienced legal practitioner.
“Issue children” was a confusing phrase used in a will which also raised questions as to intention.4 The Court construed it to benefit certain of the deceased’s children and grandchildren only – read more here.
A different example is where a gift was to be divided equally between the “issue of our marriage“. It was treated to mean only as applying to the children of the marriage because, the court reasoned, anyone would assume that was the intended meaning by the person using those words and his/her spouse.5
“Surviving issue of my children” are those offspring of your children who are alive at the date of death. That is your grandchildren and any great-grandchildren who survive the deceased providing they satisfy the survival (survivorship) rule. This rule requires that for a beneficiary to inherit they must survive the deceased by a period of time: 28 – 30 days depending on the jurisdiction. Some jurisdictions have now legislated this. For example in Queensland see Beneficiaries must survive testator 30 days, s 33B of the Succession Act 1981 (QLD), and s 35 of the Succession Act 2006 in New South Wales. However the will may say something different on this too as the law provides for a testator to express a contrary intention.
Can adopted children be counted as “issue”?
As said above “issue” refers to a person’s blood relations by descent, their progeny. This requires there be a biological connection for someone to be included, a beneficiary.
However by the operation of law under the respective state and territory adoption legislation, the legal rules mean that an adopted child becomes a child of the adoptive parents and no longer a child of their natural parents. The effect is that a legally adopted child has the same rights of inheritance from their adoptive parents as their natural children. They are adopted into the direct line of descent of their adoptive parents and become a descendant of them.
The meaning of “descendants” and “children” was before the Court. The testator and his wife were childless. At the time he made his last will his wife and five of his seven siblings had already died. He had many nieces and nephews. Some of these had been adopted out of their families while others had been adopted in.
In his will the testator defined beneficiaries to mean his brothers and sisters and their issue who survived him by 30 days. “Issue” was defined to mean the direct lineal descendants of any person. “Children” was not defined. In the circumstances where some children had been adopted in and others of biological descent had been adopted out, what did the testator mean? Who did he intend to benefit?
To resolve the matter the Executor sought a determination from the Court as to the true construction of “descendants” used in the definition of “issue” in the will, and of the term “children” as used in certain clauses. The Court said that “descendants” must be read in its ordinary meaning and in the context of the Adoption Act 2000 (NSW).6
Making intentions clear
If the gift is intended to be distributed among children only and not to grandchildren or beyond, that is remoter generations, it would seem desirable to make that clear in a will. Clarity of expression is important to avoid problems of interpretation later.
Take-away: Review testamentary arrangements periodically especially when family situations change, as to whether the wording in its context achieves your wishes. Seek the services of a wills and estates lawyer. The benefit of using an experienced lawyer to draft your will and advise is to maximise the prospects of precisely recording your intentions.
1. Buick v Equity Trustees Executors and Agency Co Ltd  HCA 65.
2. Matthews v. Williams  HCA 32
3. Coleman v Orr  QSC 215
4. Edmonds v Morrissey  NSWSC 342
5. Re Noad (dec’d)  CH 553
6. Love v Williams  NSWSC 555
Victorian Law Reform Commission, Succession Laws Report, 2013
Australian Legal Dictionary, Lexis Nexis
2 June 2020, updated 21 July 2020
© BHS Legal