A common clause in wills provides for a gift “to such of my children as shall survive me and, if more than one, in equal shares”. Whilst this seems straightforward enough, the question arises as to what happens if one of the testator’s children has predeceased the testator leaving issue. Do the testator’s surviving children scoop the pool or do the issue of the deceased child inherit their parent’s share? The answer depends upon whether or not the will excludes section 33(2) of the Wills Act 1837, which provides as follows:
- a will contains a devise or bequest to a class of persons consisting of children or remoter descendants of the testator; and
- a member of the class dies before the testator, leaving issue, and
- issue of that member are living at the testator’s death,
then, unless a contrary intention appears by the will, the devise or bequest shall take effect as if the class included the issue of its deceased member living at the testator’s death.
The crucial phrase here being: “unless a contrary intention appears by the will”. The clearest and most obvious form of contrary intention would be a clause expressly excluding s.33 or a clause providing for what should happen to a predeceased child’s share (or, ideally, both). Where a will does not contain such provision, the question arises as to what amounts to a contrary intention in a will.
Ashton v Brackstone
This question arose in the recent case of Re estate of Ellen Beatrice Brackstone  Lexis Citation 318. Mrs Brackstone died on 7 April 2018, leaving a will which stated (at clause 5) as follows:
“‘I GIVE DEVISE AND BEQUEATH all of my real and personal property whatsoever and wheresoever situate to my trustees upon trust … for such of my children as shall survive me in equal shares namely [Sandra] and [David]”
Sandra died a few months before her mother, leaving a daughter Holly (the claimant). Holly argued that she was entitled to half of her grandmother’s estate in substitution for her mother, on the basis that s.33 had not been excluded. However, her uncle (David) contested this, arguing (amongst other points) that clause 5 of the will excluded s.33 and, accordingly, that he should inherit the entirety of his mother’s estate.
The judge considered the case law on what amounts to a contrary intention in a will for the purposes of s.33. In the case of Ling v Ling  WTLR 553 ChD it was held that the following wording did not constitute a contrary intention: “…for all or any of my children or child living at my death or at the expiry of one calendar month therefrom who attain or shall then have attained the age of twenty one years and if more than one in equal shares absolutely”. Similarly, in the more recent case of Hives v Machin  EWHC 1414 (Ch), where the wording of the clause in question was virtually identical to that in Mrs Brackstone’s will, the judge found that the will did not show an intention that s.33 should not have effect.
Whilst these cases both support the argument put forward by Holly, David relied on the conflicting decision in Rainbird and another v Smith and others  EWHC 4276 (Ch). The case of Rainbird (which came after Ling but before Hives) was somewhat different to the other authorities in that it was an uncontested application for rectification of a will to exclude s.33. The judge held that the wording used (“…for such of them my daughters, the said [X, Y and Z] as shall survive me and if more than one in equal shares absolutely”) amounted to a contrary intention and thus rectification was not necessary. In distinguishing Ling (where the wording used was remarkably similar), the judge held that his task was to construe the document before him, rather than try and take guidance from the construction of another, badly drafted, document.
How did the judge decide the case?
The judge found that Holly was entitled to her mother’s half share in the estate as s.33 had not been excluded. The judge noted that whilst the matter was one of construction of the will, the construction was consistent with the cases of Ling and Hives, which the judge felt were to be preferred to Rainbird.
Lessons to be learned
The case (together with the other authorities cited) is a good example of the importance of having a professionally drawn up will, which clearly expresses the testator’s intentions with no room for ambiguity. Whilst a ‘DIY’ will may seem like a cheaper option at the time, the margin for error is significant, and the financial (and emotional) consequences of a dispute beyond the grave may be considerable.
If you would like help in drawing up a Will, please contact Julia Richards on 020 7412 5135 or firstname.lastname@example.org