With ever changing definitions of the traditional family unit, Will writers need to be on their guard as to how they prepare Wills for their clients.
In a High Court decision in 2016, the Judge decided that the legal word “issue” in a Will (which usually, in the context of Wills, means only biological and adopted children) meant children and step-children.
In this particular case, the lawyer who prepared the Will, knew that his client (a husband and wife who had five children between them from previous relationships) wanted to benefit all of their combined children and step-children in their Wills.
However, a problem arose when the lawyer only used the word “issue” instead of a more appropriate phrase when describing the people who the husband wished to benefit. If the Court had interpreted the word strictly, it would have meant that the step-children were effectively disinherited from part of their step-father’s Will.
In the decision, the Court considered that the starting point for construing this (and indeed any) Will was to identify the husband’s intention by looking at the Will itself. This involved interpreting the relevant words in the light of their ordinary meaning, the purpose of the Will, the facts known or assumed by the husband, and common sense.
The Court also looked at specific clauses in the Will and took account of matters known to the husband when he made his Will. This included his relationship with his step-children, the fact that his wife was making a Will in very similar terms and a “letter of wishes” made by him which showed that he had considered all of his children and step-children when preparing the Will.
The result in this case, was that the Court decided that the word “issue” included children and step-children.
What does this mean for me?
While families with children and step-children are usual, for every day family units, care needs to be given when preparing your Wills to ensure that all of the people that you want to benefit will do so.
If you need help preparing your Will, please feel free to use one of the contact options listed on this page so that you can speak to an experienced member of our Wills lawyer team.
If you are the beneficiary of a Will and are not sure what you are entitled to, or if you are an Executor and you believe that there may be a problem with the way the Will has been prepared, please contact us.
