“My issue” – considering the meaning of “issue” in wills

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. 

The High Court has said that ‘issue’ is a word with a clear prima facie legal meaning.  It means descendants or progeny, and is not limited to children.1,2  Prima facie means at first instance.

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 the operation of the respective adoption of children statutes. 

my issue, children, issue and children, grandchildren, descendants, inheritance, wills, deceased,

Spouses/partners are not issue and so not shown.

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“Contrary intention” in succession law and will-making

Broken Hill Courthouse - Coat of Arms, early Australian courthouses, Australian legal history, Australian Colonial courthouses,contrary intention

Coat of Arms, Broken Hill Courthouse

Contrary intention are words used in Australian succession legislation on wills and the administration of deceased estates. Some examples are given below of the range of matters where the law allows for a willmaker to express a contrary intention in their will to the statutory rule.

Where a provision of succession legislation contains these words, it means that the statutory rule can be displaced, that is not apply in the administration of their estate, if a willmaker has expressed a different intention on the matter in their will as to what they want to have happen.  A contrary intention may be expressed in a will or appear in a will.

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“Issue children” – some issues with words

For more on this topic see: ‘‘My issue” – considering the meaning of issue in wills’ 

 
 
 

“Issue children” was used to describe a class of beneficiaries in a will.  But it wasn’t clear what was intended and ultimately required resolution by the Court.   We make a will so as to provide for our loved ones; to be able to choose who will inherit our property.  But writing down our intentions so that they are clear and unambiguous for others when we are no longer around, is not easy.   For example the words “issue” and “children”. The word “issue” is a legal term meaning all of a person’s descendants; not just their children.  More considerations on its meaning can be read here.

In a recent case a gift in remainder of real estate under a will had to be distributed.1 The will-maker had died in 1948. The two trustees of the estate were the surviving children of the will-maker’s only son, deceased.  Their sister had pre-deceased their father, leaving children of her own.
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Who can see the will of a deceased person & can you obtain a copy?

To see the will, view it or obtain access to the will of a deceased person

see the will, wills, probate, deceased estate, copy of someone's will, WillsHubTo see the will of a deceased person and getting a copy can be difficult when you are not the executor or administrator.  However in some states changes to the legislation on wills and succession has made this easier by making it clear the category of persons who are entitled to see or inspect the will of a deceased person. 

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Per stirpes, per capita and deceased estate distribution

Per stirpes and per capita distribution of a deceased estate

Per stirpes and per capita are Latin terms referring to the ways in which a person’s estate can be distributed among their descendants, their children, grandchildren and so on.  A person’s descendants are often referred to as “issue” in succession and inheritance law. As the term ‘issue’ refers to more family than just ‘children’ this can lead to confusion when interpreting what a will-maker intended.   For more see this article on using the words “issue” and “children” in wills.

Per stirpes and per capita are different ways of distributing property among a group or class of people, either under a will or when there isn’t one. They address the situation where one or more family descendants of a person have predeceased them. Per stirpes means ‘by the stocks, roots or branch” and per capita means ‘by the head’, by each individual person in equal shares. More

Issue and children in wills – say what you mean

For more on this topic see: ‘‘My issue” – considering the meaning of issue in wills’ 

“Issue” is a legal word often used in wills regarding estate distribution

Meaning of issue, meaning of issue of parents, issue and children in wills, next-of-kin, inheritance, succession, legal definition, meaning of the word 'issue'Key Points:  “Issue” is a 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 be interpreted differently by others, see graphic.  They have the potential to generate different interpretations and outcomes.  The problems may not arise until later, leaving the question what did the deceased really mean?  This article is about the meaning of issue in wills.
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