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THE ISSUE WITH PER STIRPES

If you have ever read a Will or taken an estate planning class, you might have encountered familiar words being used in unusual ways (such as property being given to a person’s “issue”), or new terms you have never seen before (such as “per stirpes”).
In the context of Wills, a person’s “issue” means their closest-living direct lineal descendants (i.e. their children, grandchildren, and great-grandchildren) who are related to the person either biologically or by legal adoption. “Issue” does not include step-children or non-lineal relatives such as nieces and nephews.

“Per stirpes” is a Latin phrase that means “by branch”. In the context of Wills, this legal term is a concise way to explain a specific type of property distribution among a person’s issue. It essentially means that if a person named in the Will is dead but left surviving descendants, that dead person’s share of the estate would flow down to their children, grandchildren, etc. (i.e. their inheritance stays inside their ‘branch’ of the family).
For example, say a person has four children, and in their Will they leave their entire estate to their “issue in equal shares per stirpes.” This would mean each of the four children is entitled to receive ¼ of the estate. If one of the Will-maker’s children died before the Will-maker, but left surviving children of their own, then that dead child’s ¼ of the estate would flow down their ‘branch’ of the family to be split equally among their children (the Will-maker’s grandchildren).

Example of distribution among issue per stirpes
The usefulness of “per stirpes” has made it common-place in Wills, but unfortunately, the underlying meaning of the term is sometimes overlooked by drafting lawyers. The words “per stirpes” necessarily refer to ‘branches’ of a family and describe how property flows down a ‘branch’ to younger generations if members of the older generation have predeceased the Will-maker; therefore, a distribution “per stirpes” cannot be limited to one generation. This may seem like splitting hairs, but significant problems can arise when the term “per stirpes” is incorrectly used to refer to a distribution among a specific generation.
Consider how one would interpret a Will that gives all property to the Will-maker’s “children in equal shares per stirpes.” The language is clear that the distribution is limited only to the Will-maker’s children, meaning there is no way for the inheritance to flow down to younger generations if any child predeceases the Will-maker, rendering the term “per stirpes” inoperable. It is an oxymoron to use the term “per stirpes” in relation to a distribution among any specific generation of a family.
To illustrate the problem, if we used our example chart above and applied a distribution to the Will-maker’s “children in equal shares per stirpes,” it would result in deceased Child A’s children receiving nothing from the estate:

Wills graphic

Example of distribution among issue per stirpes

Example of distribution among children per stirpes
This is troubling because, by using the term “per stirpes,” it seems that the Will-maker intended to provide for their grandchild(ren) if the grandchild(ren)’s parent predeceased the Will-maker; however, because the term per stirpes was used in relation to a specific generation, this intention cannot be realized after the Will-maker’s death without a court application to clarify the meaning or vary the terms of the Will.
What if our Will-maker left their estate to their “grandchildren in equal shares per stirpes”? This was the situation in a case before the Supreme Court of Canada in the 1960s (Gettas v Karavos [1962] SCR 390). In that case, the Will-maker had two daughters, one of whom had one child, while the other had three children. As each ‘branch’ of the family had grandchildren, the Supreme Court found that the phrase “per stirpes” meant that the Will-maker wanted to benefit each ‘branch’ of the family equally. Since the Will-maker had two daughters, there were two ‘branches’ of the family, each entitled to receive equal halves of the estate. As a result, the grandchild who was an only child received half the estate (as she was the sole grandchild in her ‘branch’ of the family), while the other half of the estate was divided equally among the three grandchildren in the other ‘branch’ of the family.
Using our example chart, if our Will-maker left their estate to their “grandchildren in equal shares per stirpes,” then the estate would be divided into thirds (because only three branches of the family include grandchildren), and distributed as follows:

Wills Graphic

Example of distribution among children per stirpes

Example of distribution among grandchildren per stirpes
Evidently, strange and unintended property distributions may result from improper use of the term ‘per stirpes’. To avoid this problem, when using the term “per stirpes,” always pair it with the term “issue” and never with “children”, “grandchildren” or such other language that limits the word to one generation. This is best practice and our recommendation. Furthermore, whenever using the term “issue”, be sure it is clear to whose issue you are referring.
It may be helpful to define the terms “per stirpes” and “issue” within the Will itself, to assist in future interpretation of the document; however, if such definitions are included, care should be taken to ensure the terms maintain their commonly understood legal meanings. Alternatively, it is possible to avoid using “per stirpes” entirely when drafting a Will, although this should be done thoughtfully and with attention to including appropriate alternative gifting provisions.

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