Wills can often include the following clause:
- “To Divide the Residue of my Estate in Equal shares per capita between all such ISSUE of my Parent”
When used in a Will in this context, the term “issue” refers to the children of the deceased as well as the linear line of the deceased such as grandchildren and great grandchildren.
The inclusion of this clause in a Will can lead to a myriad of problems. The main problem stems from the fact that it is gifting the residue of the deceased’s Estate to any Issue of the deceased’s parents. This will include the deceased’s siblings, nieces and nephews and great nieces and nephews as well as the deceased’s own children, grandchildren and great grandchildren. When put into practice the clause will allow each of these beneficiaries to receive an equal share of the deceased’s estate. So, in effect, the deceased’s children will receive the same amount as their cousins, the deceased’s nieces and nephews.
A badly drafted Will can cause major problems when it comes to distribution of the deceased’s Estate. But of more concern is that a badly drafted Will can increase the likelihood of the Estate being subjected to family provision claims which can incur hefty legal bills that significantly decrease the amount of money left to distribute to beneficiaries.
The best way in which to overcome the inherent problems in use of the word “issue” in a Will is to list the people who are to be beneficiaries of the Estate. This can include a clause that if the person who was to receive the benefit is deceased then their children/grandchildren receive the benefit in equal shares.
Our expert Wills and Estate Lawyers draft Wills that are unambiguous and that minimise the risk of a family provision claim against the Estate. We explain to our client’s in plain english exactly how the distribution of assets will occur and we strive to ensure that our client’s understand the practical effects of their Will. This includes explanations of the legal meanings of standard terms used in a Will such as “issue”. In essence, we ensure that our client’s Wills reflect their testamentary wishes in a practical and clear manner.