What does the term “issue” mean?

The BC Supreme Court was recently asked to interpret the meaning of the word “issue”, which is commonly used in Wills to provide gifts to subsequent generations of beneficiaries if a named beneficiary dies (Barnes Estate v. Barnes 2013 BCSC 1848). In this case, the Will provided that the residue of the deceased’s estate was to be divided equally between her two sons.  If a son predeceased the will-maker, the gift was to be given “in equal shares per stirpes” to the “issue” of the deceased son.  Both sons predeceased the will-maker, leaving children surviving them.  One son had predeceased and left two children whom the Executor argued were not beneficiaries because the children were not the biological children of the deceased son.  The Executor argued they were therefore not the “issue” of the deceased son.  The value of the estate was $224,000.00.

Despite the fact that DNA testing on one of the children showed that she was unlikely to be the biological child of the deceased son, the Court decided the children were the “issue” of the deceased son.  The Court considered the fact that the deceased son raised the two children as his own and acknowledged them as his children.

The Court considered dictionary definitions of “issue”, which primarily focused on lineal descendants, then stated “these authorities are not determinative of the matter” (at para. 41).  The Court concluded the meaning of the word “issue” is not clear and unequivocal and instead sought evidence of the family’s treatment of the two individuals in question.

This case is a reminder to ensure language used in a Will properly reflects the wishes of the will-maker, and that the will-maker understands the meaning of terminology selected by the will drafter.

If you have questions about estate planning or estate litigation, please feel free to contact one of the lawyers in our Wealth Preservation + Estate Litigation Practice Group.

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