Legal Definitions - definite failure of issue

Definite failure of issue refers to a legal condition, most commonly found in wills, trusts, or property deeds, where it is determined at a specific, fixed point in time that a particular person has no living descendants (children, grandchildren, great-grandchildren, etc.). This specific point in time is almost always the death of the person in question.

When a document specifies a "definite failure of issue," it means that if, at the moment of that person's death, they have no living children or other direct lineal descendants, then an alternative plan for the property or inheritance comes into effect. This concept is crucial for ensuring clarity in estate planning and avoiding prolonged uncertainty about who should inherit property.

Here are some examples illustrating this concept:

• Example 1: A Conditional Will Bequest

  Imagine a will that states: "I leave my family farm to my son, David, and his issue. However, if there is a definite failure of issue for David, then the farm shall pass to my sister, Eleanor."

  How it illustrates the term: If David lives his entire life and, upon his death, has no living children, grandchildren, or other direct descendants, then a "definite failure of issue" has occurred. In this scenario, the farm would then be inherited by Eleanor, as specified in the will. If David had even one living child at the time of his death, there would not be a definite failure of issue, and the farm would pass to his child(ren).

• Example 2: A Trust Agreement for Future Generations

  Consider a trust document that establishes: "Funds shall be held in trust for my granddaughter, Maria, for her lifetime. Upon her death, the remaining trust assets shall be distributed to her issue. In the event of a definite failure of issue for Maria, the assets shall be donated to the local university."

  How it illustrates the term: If Maria passes away and, at that precise moment, has no living children or other direct descendants, then the condition of "definite failure of issue" is met. Consequently, the trust assets would then be given to the local university. If Maria had a living child or grandchild at her death, the trust assets would go to them instead.

• Example 3: A Property Deed with Reversionary Interest

  A property deed might convey land "to my nephew, Robert, and his issue, for as long as such issue shall exist. Should there be a definite failure of issue for Robert, the property shall revert to my own heirs."

  How it illustrates the term: This clause means that Robert and his descendants can own the land. However, if Robert dies, and at the time of his death, he has no living children, grandchildren, or other direct descendants, then a "definite failure of issue" has occurred. The property would then revert back to the original grantor's heirs, as stipulated in the deed, because the condition for Robert's line to hold the property has ceased.