Under the terms of a 1977 Will, ‘A’ is bequeathed a life interest in the deceased’s property. On 'A’s death her daughter ‘B’ is bequeathed a life interest in the property. ‘A’ although elderly is still alive and in occupation of the property. ‘B’ is also still alive. On the death of ‘B’, the 1977 Will states that the property is bequeathed to “the youngest of my issue living at the date of her death in fee simple”.
Whilst the deceased had children, none of them were left anything under the Will and the residue of the estate passed to the deceased’s grandchildren.
We are trying to establish the intention of the testator as to whether “the youngest of my issue” applies to all of his descendants or was it intended to be limited only to the children of the deceased?
The solicitors who drafted the Will no longer have a file and so are unable to assist.
I believe there have been cases of the word “issue” being construed to apply only to children, but only where there was evidence of the testator’s intention, which apparently you do not have. I’m afraid I have only been directly involved in a case where
the drafter was available to confirm his intention.
There is some discussion on the subject in Vol 1 Chapter 76 of Williams on Wills which may help (or not, as the starting point is still that issue means all descendants).
If it is, then I understand the usual scenario is to ascribe the same
meaning to the word in each provision, unless it is clear that a
different meaning is intended in any particular provision.
If “issue” is not used elsewhere within the will, you fall back to Diana
Smart’s position.
However, if the will leapfrogs the testator’s children, it would seem
inconsistent to then benefit the youngest child, and my gut feel is
inclined to the word being given its usual, wider meaning.
If there is much value at stake, I suggest it might be appropriate to
seek an opinion from Chancery counsel.
There is a very helpful section on the use of the term “issue” in James Kessler’s book ‘Drafting Trusts and Will Trusts’. From memory, I recall that Francis Barlow also wrote an essay (possibly available online) working through the many possible permutations.
Aside from the contextual issue, you might also (depending on the facts in your case) need to consider the effects of the various family law reform Acts – the date of the Will may well have a bearing.
The word “issue” is not used elsewhere in the Will.
As you say, the terms of the Will leapfrog the testator’s children as the grandchildren received the residuary estate and it would seem inconsistent to then benefit the testator’s youngest child.
We will consider Vol 1 Chapter 76 of Williams on Wills and try to find the essay by Francis Barlow to see if that helps establish that the testator’s intention was indeed that the word “issue” in his Will refers to all his descendants. If that was likely the testator’s intention, we can then seek agreement of that view from the children of the testator (anyone one of whom could otherwise potentially benefit as being the youngest at B’s death) or to seek an opinion from Chancery counsel.