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Private Client Section

Wills Act 1837, section 33: substitution of issue

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Lesley King discusses section 33 of the Wills Act 1837. 

Note: Normally, commentary by Lesley King is a Private Client Section member-only benefit, but we are sharing her first commentary of 2018 as a taster feature. If you are not a Section member, you can join up here.

Section 33 (1) of the Wills Act provides that:

‘Where:

  • a will contains a devise or bequest to a child or remoter descendant of the testator; and
  • the intended beneficiary dies before the testator, leaving issue; and
  • issue of the intended beneficiary are living at the testator’s death,

then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death’.

Section 33(2) makes equivalent provision for a devise or bequest to a class of persons consisting of children or remoter descendants of the testator.

So, unless a contrary intention appears by the will, the issue of a person who would have been a member of the class had he/she not predeceased can be included in the class, even though the class will not be formed until the testator’s death.

Hives v Machin [2017] EWHC 1414 (Ch)

The testatrix, Marjorie, left the residue of her estate ‘UPON TRUST for such of my son PETER DAVID MACHIN my said son ERIC WILHELM MACHIN and my said son CHRISTOPHER BASTUBBE who shall be living at the date of my death and if more than one in equal shares absolutely’.

Eric and Christopher both predeceased the testatrix. Christopher died without issue. Eric had a daughter, Joanne.

Was Peter entitled to the whole of the residue or was Joanne able to take her father’s share? This depended on whether Wills Act, section 33 applied or had been excluded by the wording of the will.

There were two earlier decisions on identical wording: Ling v Ling [2002] WTLR 553 which decided that the wording did not exclude section 33 and Rainbird v Smith which decided that it did, although in the latter case there was strong extrinsic evidence that the testatrix had wanted to exclude issue of a deceased child.

The decision

Counsel for Peter argued that since the Supreme Court decision in Marley v Rawlings [2014] UKSC 2 interpretation of a will depends on ascertaining the testator’s intention from the will as a whole irrespective of previous decisions on similar or even identical wording.

Timothy Fancourt QC sitting as a deputy judge agreed that the question was one of interpretation of the language of the will. However, the crucial question was: did the will show an intention that section 33(1) did not have effect?

The words of the gift did say that the residuary estate was to be shared equally by such of Marjorie’s three sons as survived her. There was no ambiguity about them.  But clause 5 said nothing about whether the statutory substitution provisions of section 33 were to be excluded, any more than if the gift had been ’to all or any of my sons who shall survive me in equal shares‘ or simply ’to my 3 sons’.

He considered that, upon the death of one son, the other two sons were presumptively entitled to a half share each of the residue, but subject to any further provision made by Marjorie before her death and subject to the operation of section 33. There was nothing to show that surviving issue could not take a share by substitution.

Counsel for Peter suggested that an express reference to the issue of each beneficiary being able to take the gift in substitution for a deceased beneficiary was required. The judge disagreed. Requiring such a statement would have the effect of reversing the presumption underlying section 33, and requiring a testator to ‘contract into’ section 33. This was the same view that Mr Justice Etherton had taken in Ling v Ling. He had held that the words ’who shall be living at my death’ gave no indication at all of an intention that the deceased beneficiary’s issue (as distinct from the deceased beneficiary) should be excluded from taking under section 33.

The ‘default’ setting is therefore that section 33 applies unless there is evidence of an intention that it should not.

Implications

The judge had refused to admit extrinsic evidence under Administration of Justice Act 1982, section 21 because such evidence can only be admitted if the will (or part of it) is ambiguous or meaningless and this was not the case. In any event the alleged evidence of Marjorie’s intention to exclude issue was unconvincing. The will-drafter was convinced that his wording excluded issue and that this had been the testatrix’s intention. However, in cross-examination, he accepted that he had no actual recollection of the client or of her instructions to him at any stage, beyond what was contained in the will files. He suggested that Marjorie had said that she had a problem with one of the grandchildren and so did not want any grandchildren to benefit from her residuary estate. The judge described this as ‘troubling’, since (a) he had no recollection of what was then said; (b) the will files showed no issue relating to any particular grandchild.

So:

  1. If you want to exclude Wills Act, section 33 say so. Either ‘Section 33 of the Wills Act is not to apply to clause [ ]‘ or ’The share of a deceased child is to accrue to such of my children as survive me and is not to pass by substitution to their issue’.
  2. Any discussion of family disharmony or reasons for excluding certain beneficiaries should be recorded in an attendance note.
  3. Despite the finding that the default setting is that section 33 applies unless excluded, it is preferable to make express provision for substitution of issue.
  • It will prevent argument.
  • The testator will be aware of what is intended. In Hives v Machin the judge commented on the fact that the letter sent to Marjorie with the will simply repeated what the clause said, it did not explain how it would apply in various scenarios.  ’What Marjorie actually thought about the effect of clause 5, if anything, is unknown. Had she focussed on it closely she would probably have understood that if one or other of [the sons] predeceased her the other[s] would take’.
  • The substitutional gift can be made contingent.

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