News

Julia Richards examines section 33 of the Wills Act 1837 in the case of Re estate of Ellen Beatrice Brackstone [2020]

  • November 13, 2020
  • By Julia Richards, Partner

This article was originally published on 13 November 2020 in Edward Fennell’s Legal Diary Blog, the Legal Editor of The Times, and can be accessed here

Wills often provide for a gift “to such of my children as shall survive me in equal shares”, but what happens if a child predeceases the testator leaving issue?  Do they inherit their parent’s share or do the testator’s surviving children scoop the pool?  It depends on whether section 33 of the Wills Act 1837 applies.

S.33 applies where the testator leaves a gift to a child (or remoter descendant).  If that child predeceases the testator, their own children take per stirpes, “unless a contrary intention appears by the will”.   The clearest form of contrary intention is a clause expressly excluding s.33 but what happens where a will does not contain such provision?

The question has arisen in several cases over the years with conflicting decisions.  The issue arose most recently in the case of Re estate of Ellen Beatrice Brackstone [2020] Lexis Citation 318.  Mrs Brackstone died leaving a will, which provided that her estate should pass to:

“…such of my children as shall survive me in equal shares namely [Sandra] and [David]”

Sandra predeceased her mother, leaving a daughter, Holly, who claimed that she was entitled to her mother’s share of the estate.  However, David contended that the Will excluded s.33 and that he inherited everything.

Having reviewed the case law and carefully considered the construction of the will, the judge declared that the above wording was not sufficient to exclude s.33 and, accordingly, Holly was entitled to a half share in the estate.

The case is a good reminder of the importance of clear drafting and the unwelcome consequences of ambiguity.  To ensure that the testator’s intentions are clear on the face of the will, many practitioners choose to exclude s.33 and include an express default gift, leaving no room for doubt.

Related News

Sep 20, 2021
Louise Garrett discusses the proposed increase in probate fees in WealthBriefing
Sep 17, 2021
Molly Wills discusses Lasting Power of Attorneys in Hamilton George Care
Sep 15, 2021
Daniel Watson examines the pros and cons of vulnerable beneficiary trusts in EPrivateClient
Sep 07, 2021
Louise Garrett examines the MoJ’s open consultation regarding the fees for grants of probate in EPrivateClient
Aug 17, 2021
Daniel Watson examines the Law Commission’s call for evidence on possible reform of the legal treatment of crypto-assets and digital assets in England and Wales in EPrivateClient
Aug 11, 2021
Louise Garrett examines the news that the Ministry of Justice is seeking to increase probate fees in Lawyer Monthly
Aug 02, 2021
Harriet Murray explores the implications of paying for the pandemic with a wealth tax in Lawyer Monthly
Jul 22, 2021
Hunters’ success in the Chambers HNW 2021 Guide
Jul 19, 2021
Daniel Watson examines the Law Commission’s proposal for reform of the Wills Act 1837 in EPrivateClient
Jul 15, 2021
Flora Nelmes examines why a solicitor should be used for probate

© Hunters Law LLP 2021 | Privacy NoticeLegal & Regulatory | Cookies Policy | Complaints Procedure.

Hunters Law LLP is authorised and regulated by the Solicitors Regulation Authority (number 657218)