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 testator, the gift was to be given
"in equal shares per stirpes" to the
"issue" of the deceased son. Both sons predeceased the
testator, 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
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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).