Legal Question in Wills and Trusts in California
My grandmother passed away earlier this year and I'm trying to interpret her trust.
As background, due to past bad behavior, the trust was amended to change the language from "as many equal shares as there are children of the trustors then living and children of the trustors' deceased leaving issue when living" (which seems to indicate that if both of the trustor's children are alive, it gets split 50/50) to instead split the trust into two equal shares, one going 100% to one son, and the other "divided in equal fractional shares among [son2] and his surviving issue".
In plain terms it was explained to me years ago by the deceased that 50% would go to son 1 and son 2 and his three children would each get 12.5%.
However, because I google too much, I'm now concerned that "surviving issue" could be interpreted as including my sibling's offspring, which would raise the number of "issue" to 8 (9 including son 2) , greatly reducing the share of the childless grandchild (it's me, I'm that one).
I've been asked to sign a waiver of my ability to contest the trust and want to make sure I understand before I proceed with signing anything.
What is the common interpretation of this language? The trust was signed before 1990 if that matters.
2 Answers from Attorneys
"Common interpretation" is irrelevant. Legal definition is what counts and Probate Code section 50 provides the answer. "Issue" includes parent/child descendants of any level. So Son 2 and all his children, grandchildren, greatgrandchildren if any, etc. who are alive get an equal share of the 50%.
Please accept my condolences on the loss of your grandma. My grandmother died more than fifty years ago and I'm still sad.
That's a great question and one which bedevils the bar to this day. Many lawyers avoid using the term for exactly the reason you've discovered. Hopefully the lawyer who is handling the trust is the same one who drafted the document and explained the meaning of the word to grandma, which she then explained to you. Most definitely you have to get clarity before you sign the waiver.
Good luck.
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