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What Does the Term Issue Mean in Probate

The imprecise use of language is a common problem in probate litigation.  The recent case of In re Estate of Payson, 93 Mass. App. Ct. 1124, 110 N.E.3d 1221 (2018), demonstrates a problem with the term “issue” and what it actually means in probate.

The decedent’s will created a trust for the benefit of her husband, whereby he received the net income during his life. Upon his death, their only daughter received the net income during her life.  Upon the daughter’s death, the will provides:

to pay the net income [derived from the trust] to the children of my said daughter, until the youngest shall have attained the age of twenty-one years, then I direct my said Trustee to pay over and distribute the whole corpus or principal of this Trust Fund, together with accumulated income, to the issue of my daughter, Elizabeth Payson Duncan, in equal shares, share and share alike, free and discharged of this Trust.

Citing an ambiguity created by the use of the terms “children” and “issue,” the trustee sought a determination of the meaning of issue in the probate court, specifically whether distribution of the trust was to go solely to the daughter’s four living children or, also, to the daughter’s seven living grandchildren (the testatrix’s great-grandchildren), which would have totaled eleven beneficiaries.

As explained by the Court (citations omitted):

In 1960, the term “issue” was known, “in the absence of any indication to the contrary, . . . [to] refer[] to lineal descendants of the ancestor who would be entitled, at the death of such ancestor, to take [her] property under the law of intestate succession, and, in conformity to this principle, grandchildren of the ancestor and their descendants will not be allowed to compete with their parents unless such was the intention of the [testatrix.]”

Put another way, the children (descendants) of the daughter (ancestor) are entitled, at her death, to take her property under the law of intestate succession; because all of the daughter’s children survived her, and there was no indication in the will stating otherwise, their children (the great-grandchildren) would not take under the will, as they would not be “allowed to compete” with their living parents. Issue take only in the event the parent of such issue is not living; if the issue are only to take in place of “their respective parents, and not along with them in equal shares, then, in the absence of anything further, such issue will naturally take the share of the parent that they replace.”  In this case, no language appears in the will indicating the testatrix’s intention to contradict the common meaning of “issue” known at the time of execution.

In ruling in favor of the grandchildren and against the great-grandchildren, the Court concluded:

To include the great-granddaughter (or any of the other great-grandchildren) within the final beneficiaries would cause her “to compete” with Theodore S. Duncan, her living parent, in direct contradiction to the testatrix’s intention, and in conflict with the laws of intestate succession.

The will would have been much better drafted had simple language, such as “to her children” been used (which under the laws of every state would have allowed the children of a deceased parent to take), instead of the language “the issue of my daughter, Elizabeth Payson Duncan, in equal shares, share and share alike.”  Outside of a probate lawyer, who knows what that language means?  Indeed, the trial court in this case came to the opposite conclusion, highlighting the problem with using vague, imprecise, or overly legalistic terms, such as “issue” the actual meaning of which not even estate planners might agree upon.

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