Who inherits when the will gives the estate to the “issue” of people?

  • “issue” is a word sometimes used by lawyers to describe the descendants of a person
  • What the words in a will mean depends on what the will-maker intended them to mean

In Barnes Estate v. Barnes the will-maker left her estate to her two sons, Ernest and Kenneth, but if either were pre-deceased her, the “issue” of her sons would take their father’s share.  Both sons died before the will-maker died.  Ernest’s son claimed that Kenneth’s children were not his biological kids, so they should get nothing.

The court disagreed and said that “issue” was not just the biological children.  This was a will, and the objective of the court is to determine what the will-maker meant by her words.  Courts use the “armchair rule”, putting themselves in the position the will-maker was in when she made the will, and interpreting the words in the will in light of what the will-maker knew at that time.

In this case, the will-maker knew that Kenneth has two children around the age of 30, that he had always treated them as his children, and the family had always assumed they were his children.  Kenneth’s wife, the mother of the children, swore they were Kenneth’s kids.  In addition, the will-maker obviously thought they were Kenneth’s kids and wanted them to inherit or her will would not have referred to Kenneth’s “issue”.

The words used in wills can make them difficult to understand, but we can help.  Contact us.

Read the case:  Barnes Estate v. Barnes

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