Legal Definitions - failure of issue

In legal terms, a failure of issue refers to a situation where a person who owns property dies without leaving behind any living children or direct descendants (such as grandchildren or great-grandchildren) who would typically inherit that property. When a will or other legal document specifies what should happen to property in such a scenario, it often uses this concept to determine alternative beneficiaries.

There are two primary ways a failure of issue can be defined:

• Definite Failure of Issue: This occurs when a will or legal document specifies a particular, identifiable point in time at which it must be determined whether a person has living descendants. If, at that exact moment, there are no descendants, then a failure of issue has occurred.
  • Example 1 (Definite Failure of Issue):

    Imagine a will states: "I leave my vintage car collection to my nephew, Alex. However, if Alex dies before reaching the age of 50 without leaving any children, then the collection shall go to my sister, Brenda." Alex tragically passes away at 45, having never had children. In this case, there is a definite failure of issue because Alex died without descendants at the specific time stipulated in the will (before age 50). The car collection would then pass to Brenda.

• Indefinite Failure of Issue: This type of failure of issue does not specify a particular time limit. Instead, it refers to the general concept that a person dies without ever having any direct descendants at any point in their life.
  • Example 2 (Indefinite Failure of Issue):

    Consider a will that reads: "I grant my family's ancestral home to my daughter, Clara. If Clara dies without issue, the home shall then pass to the local historical society." Clara lives a long life, never marries, and never has children. When she passes away at 92, she has no direct descendants. This is an indefinite failure of issue because the will did not set a specific age or event for determining the presence of descendants, only that she died without them. The ancestral home would then go to the historical society.