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.