An “Issue” to Have a Legal Fight About

Our clients who receive our newsletter will by now gather the importance we place on proper estate planning with a carefully drafted Will and Enduring Power of Attorney.
There is more and more litigation by dissatisfied children and dependants not receiving a share, or a share they consider inadequate, from an estate of a deceased person.

A recent judgement in the Supreme Court of Queensland delivered on 30 June 2011 by Justice Lyons in Brisbane, demonstrates the type of arguments people who think they should have a share of an estate, or a bigger share, will raise.

In this particular judgement there was a legal fight over the definition of the word “issue”.

The word “issue” is often found in Wills.

However, without a proper understanding of the word “issue”, the use of the word in a Will can cause the Will to be interpreted to have different consequences than the person who made the Will intended.
In this particular case, elderly Mrs Simpson died and left the main part of her estate for her three children as:-

“…shall survive me and attain the age of eighteen years provided always that if any such child should die without having attained a vested interested hereunder leaving issue who shall survive to attain the age of eighteen (18) years such issue shall take if more than one equally between them the share in my estate which his her or their parent would have taken had such parent survived to attain a vested interest here under”

One of Mrs Simpson’s three children, Charles, died before Mrs Simpson, having been killed unlawfully by his own son Stephen.

The matter came before the Supreme Court for a declaration as to whether or not Stephen’s son Taylor (Mrs Simpson’s great grandchild) should receive Charles’ share effectively. The other two surviving children of Mrs Simpson sought the declaration of the Court that Taylor did not inherit Charles’ share on two bases:-

1. Taylor was not “issue” entitled to receive Charles’ share as mentioned in the clause of the Will above; and
2. Stephen and therefore Taylor would never have inherited Charles’ share of the estate because of Stephen’s unlawful act of killing Charles.
The Judge considered the law as to the definition of issue in the context of Wills and the provisions of the Succession Act 1981 (Qld) and decided that because of the particular wording of the clause mentioned above, the word “issue” was only intended to include the children of Mrs Simpson’s children i.e. Mrs Simpson’s grandchildren.

It did not extend to great grandchildren.

A significant reason for that finding was the context of the word “parent” in the clause. Accordingly, Mrs Simpson’s estate was shared between her surviving two children and Charles’ lineal descendants did not receive any share.

There were two lots of law firms involved in the litigation who each engaged a barrister.
No doubt legal fees were considerable.

If the Will had have been drafted more clearly, then this litigation may never have been necessary.

That is, there may never have been the prospect of Stephen’s son (no doubt encouraged by Stephen who killed his father Charles) making a claim.
The estate no doubt has been eroded significantly by the value of the legal costs involved in this stowsh.
We encourage our clients to see us to have their Wills properly drafted, whether or not they have never done a Will or alternatively, if their Will needs to be reviewed and potentially updated.

It is possible some clients who have Wills drafted years ago either by themselves or with the assistance with other lawyers, think their Wills are in satisfactory terms, but it is advisable we at least check old Wills for clients to confirm whether that is a true assumption or not.

Of course we also espouse similar sentiments to encourage clients to consider making an Enduring Power of Attorney or reviewing the Enduring Power of Attorney even if they already have one.
For example, many clients have an old form of Enduring Power of Attorney pre-dating 1998 which does not provide for a personal/health attorney as the more modern version does. Pre 1998 Enduring Powers of Attorney will only cover financial matters which will not help in awkward situations such as making medical decisions for elderly relatives.