“Gift over” in a will to a substitute beneficiary

However ift over to a substitute beneficiary

A “gift over” in a will is when a willmaker has provided that if their intended beneficiary dies  or does not survive them within the required time by law, the gift passes over to a substitute beneficiary they have nominated instead to inherit. The substituted beneficiary is really a second recipient chosen to inherit or take the gift should an event occur, here the death of the first or primary beneficiary. Other conditions and contingencies may apply depending on what the will says and surrounding circumstances. See infographic.

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“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 by the operation of the adoption  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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Getting married – does it affect a previously made will?

Under Australian succession law, marriage generally cancels an existing will, subject to some exceptions.

MarriageGetting married is an important life event.  There is a lot to organise, in addition to making arrangements for the wedding ceremony itself.

However, if research on will making in Australia is any guide, the making or updating of existing written instructions as to what is to happen on death following the changed personal circumstances, probably won’t feature highly on the list of things to do.

Yet attending to making a valid will taking into account changed or soon to be changed circumstances is important.  If not, the rules of intestacy would apply on death, and these may not produce the desired outcome.

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