What Does "Issue" Mean When Referred to in a Will?

When drafting or interpreting a Will, legal terminology can often be complex and confusing. One such term that frequently appears is "issue." Understanding its meaning is crucial for both the testator (the person making the Will) and beneficiaries, as it can determine how an estate is distributed among descendants of the testator.

Definition of "Issue" in a Will

The term ‘issue’ is not defined in the Succession Act 2006 (NSW) even though it occurs in some of the provisions of the Act. In legal terms, it refers to an individual’s lineal descendants by blood of every degree. The term usually implies successive generations of parents and child relationships. This includes:

• Children: Children here means the biological offspring of a person and they are the closest degree of issue.
• Grandchildren & great-grandchildren: ‘Issue” also extends to grandchildren, great- grandchildren and so forth and often referred to as ‘remote / remoter descendants’.

Does "Issue" Include adopted children?

Although the historical meaning of the term ‘issue’ refers to blood relations, under the laws of NSW, legally adopted children also have the same rights of inheritance from their adoptive parents as they become their natural children and no longer retain the legal rights of their birth parents.

Does "Issue" include a posthumous child?

Section 3(2) of the Succession Act 2006 (NSW) includes a posthumous child to be ‘issue’, if the pregnancy began before the testator’s death and the child survives for at least 30 days after the death of the testator (unless otherwise stated in a Will). This is often described as en vetre sa mere.

Does "Issue" Include Stepchildren?

No, unless specifically allowed in the Will, stepchildren are not considered "issue." The term generally applies to biological and legally adopted children. If a testator wants stepchildren to inherit, they must explicitly include them in the Will. Although not included in the term ‘issue’, Chapter 3 of the Succession Act 2006 (NSW) allows stepchildren and dependent members of the household, to make a family provision claim if they believe the testator hasn’t fulfilled their moral obligations to provide for them.

Does "Issue" Include Collateral relations?

Collateral relations are those who are related by blood by a common ancestor but through different branches. Examples of such relatives are aunties, uncles, cousins, siblings, nephews, nieces and their next generations. The term ‘Issue’ in its legal meaning does not include them. To leave any assets to any of these relatives, a testator must provide for them specifically in their Will.

Who are not "Issue"?

Apart from the collateral relatives, the blood relatives on the same direct lines such as parents and grandparents are not ‘issue’. Similarly, a spouse, former spouse, de-facto partner or in-laws are also not included in the term.

Can the primary meaning of “Issue” be restricted in a Will?

In the first instance, the terms of the Will are interpreted in their broader legal meaning unless otherwise specified. Courts have held that a testator may restrict the scope of the word ‘issue’ in the Will to be used in a narrower sense to limit the descendants. In Matthews v Williams [1941] HCA 32, it was held that if the deceased has expressed his intentions to be different than the natural meaning of a term by ‘sufficient indications’ that appears in the document, the court would interpret the same as intended.

In such scenarios, the intentions of the testator must be clear from the choice of words in the will and the terminologies used in the context of the surrounding circumstances at the time of execution of will; otherwise, problems may occur if the Will’s language is unclear.

Do you need assistance?

Understanding the meaning of "issue" in a Will is essential to ensuring that an individual’s estate is distributed according to their wishes. If you are drafting a Will, consider consulting a legal professional to ensure your intentions are clearly documented and legally enforceable. If you need assistance with estate planning or legal documentation, contact us for a consultation with an expert estate lawyer on the provisions of your will.

Photo by Patricia Prudente on Unsplash