Issue is a legal word often used in wills

“Issue” is a legal word 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.

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 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 is about the meaning of issue in wills.

“Issue” has a wider meaning than just “children”.

As said about, issue means all of your lineal descendants, including your children, (see graphic below). In state and territory succession legislation “issue” appears in provisions dealing with the construction of wills and intestacy, and also in some property legislation.

Leaving a gift to “issue” in a will can therefore produce different outcomes as to who inherits compared to leaving it to just “children”.

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

Meaning of “children” – is its usual or ordinary meaning

The meaning of “children” hardly needs mentioning. But it is those direct offspring from their parents, that is the first generation. This is the ordinary meaning of “children” and is that usually applied by a court if it is required to interpret a will – unless the language used in the will makes it clear the will-maker meant something different, referred to as a ‘contrary intention’.¹

But this needs to be very clear, and this can be done by defining the word in the will itself. 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, not a common occurrence.

Whether “issue’ means “children” or “descendants”

Sometimes the word “issue” is used in a will in such a way that executors find it difficult to work out what the deceased person actually 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) but in another the context showed only “children” were intended, and in other parts its meaning was doubtful.²

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

The High Court

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.

my issue, children, grandchildren, remote issue, living issue, wills, deceased, inheritance, succession, collateral relations, descendants, — Leaving a gift to issue – a gift is left to the issue of “A” – means that all of A’s children, grandchildren are entitled to share in that gift and so on.

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 says that where there is a contrary intention in the will, the statutory rules may not apply.

Keeping it in the family

“Children” and “issue” are about classifying family relations into particular groups for passing on an inheritance by will. It is also about how many descendants are entitled to take or 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.

If a willmaker’s intention is for a particular gift to be distributed only among their children, naming them in their will assists in clarifying that intention.

Leaving a gift to grandchildren

It might be desired to leave a gift to be divided among grandchildren, bearing in mind the possibility of those not yet born. Some prefer to name the grandchildren where known and to 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. Consult a solicitor specialising in wills and estate law for advice who can then tailor it to the circumstances. Leaving a gift to issue by will indicates a desire to continue to ‘keep it in the family’, among blood relations – and away from those related by marriage (by affinity).

Leaving a gift to “my children”

Leaving 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

As time passes, the issue of a person may potentially contain more individuals than their children, although not all may be living when the will-maker dies. In working out the distribution of the gift to the 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 – read 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, the case law says.

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 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.

Take care when using the words “children’ and “issue” and seek professional legal advice. 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 without 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 17 March 2022.

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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Issue and children in wills