In the majority of cases where a beneficiary dies before a testator and there is no substitute beneficiary named then the gift is invalid and fails. This is the doctrine of lapse. Lapse can be avoided by naming substitute beneficiaries or by making gifts to classes of beneficiaries. The most notable exception to the doctrine of lapse however is s33 of the Wills Act 1837.
Section 33 operates to prevent lapse where a testator makes a gift in their will to their own children or remoter descendants. It will operate unless expressly excluded or unless a contrary intention is obvious.
For s33 to operate the testator must make a gift by will to their child or remoter descendant. That beneficiary must have predeceased the testator leaving issue, and that issue must be living at the testator’s death.
How do the issue inherit?
s33(3) provides that issue will inherit per stirpes:
Issue shall take under this section through all degrees, according to their stock, in equal shares if more than one, any gift or share which their parent would have taken and so that no issue shall take whose parent is living at the testator’s death and so capable of taking.
So, let’s say a testator gifts the residue of his estate simply “to my son A absolutely” and A unfortunately dies before the testator. Provided A died leaving issue of his own, s33 will work to prevent the gift of residue failing. A’s share will pass to his own children in equal shares instead.
Now let’s change the above example so that A had two children, B and C, and C also died before the testator leaving issue of his own. The estate distribution will look like this:
s33(2) also provides for this exception to apply to class gifts:
Where—
(a) a will contains a devise or bequest to a class of persons consisting of children or remoter descendants of the testator; and
(b) a member of the class dies before the testator, leaving issue; and
(c) 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.
Contrary Intention
S33 applies unless there is contrary intention. The clearest form of contrary intention would be a clause expressly excluding s33. Contrary intention may also be expressed by wording a clause that makes a gift to the testator’s issue in such a way that the testator’s intention to give to someone other than issue in substitution is clear. There are conflicting opinions on what constitutes contrary intention though; two notable interpretations come from the cases of Ling v Ling [2002] WTLR 553 ChD and Rainbird and another v Smith and others [2012] EWHC 4276 (Ch),
In Ling v Ling a testator left his estate to his wife if she survived him by one month, or to his two children if they survived him by one month and reached 21. The gift to the children was phrased as to the beneficiaries “living at my death”. The testator’s wife and son predeceased him, with the son leaving a child of his own. The surviving daughter alleged that she was solely entitled to the estate as the wording “living at my death” excluded the deceased son from any benefit and excluded s33. The courts were not of the same opinion. It was held that s33 did apply and the wording merely made explicit what was already implied; that a beneficiary must survive the testator to inherit.
Contrast this with Rainbird. In this case the gift was expressed as “to such of them my daughters, the said A, B and C as shall survive me and if more than one in equal shares absolutely”. One of the daughters predeceased the testator, so the question was whether the estate would pass only to the remaining two daughters or whether the deceased daughter’s share would pass under s33.
It was held that the wording was clear enough to show the testator only intended to leave her estate to the daughters who survived her as she had included the words “such of them as shall survive me”. This was made clearer by the inclusion of the wording “and if more than one in equal shares” as this implied that the final division of the estate between the daughters was not certain. It was dependant on how many survived.
To avoid any construction problems like the above many practitioners choose to expressly exclude s33 and draft any substitutional gifts very clearly in the will itself. This makes sure that the testator’s intention is very clear and avoids any unintended consequences.
20 comments
Allan
2nd May 2021 at 12:07 pm
Dear Siobhan,
Thank you for the above article regarding S33 of the Wills Act which I read with interest but with a heavy heart. I wondered if you might be able to provide your thoughts on whether there is a possibility of S33 be nullified or excluded when a child beneficiary dies before a testator who at that time is mentally incapable of changing his Will and that there’re no explicit words in the Will to exclude s33 of the Wills Act 1837.
Three years ago my dad, the sole bread winner, suffered a brain stroke rendering him in a vegetative state and placed in specialised care home, leaving behind my mum and 3 children. 3 months after that my younger sister died a sudden death (in under 72hrs from being a healthy person) from preterm pregnancy. On the recent passing of my father we realised in his will he has only leave behind his estate to his three children; the wordings is simple “I give my estate to the following persons in shares and proportions as stated: A, B, C” – A, B, C being the elder daughter, son and younger daughter . My dad and my mum did a mirrored will, they are simple folks and were not aware of the existence of S33, and were not advised by the solicitor who did the will for them. My dad did not leave behind anything for my mum as he entrusted us the three children to look after mum (as verbally discussed between them). As my late younger sister did not have a will written (she was only in 30s), her full estate went to the spouse and her child who is five, and that her spouse gave nothing to my mum. Given the normal operation of S33, the one third of my dad’s estate would have again gone to my younger sister’s spouse (as a husband and the trustee of a minor). Our family and all know that this would not have been my dad’s wish – given my dad is the sole bread winner of the family, my elder sister has lost her job, we have spend a large medical amount on my dad’s medical care, and i am the only one now working. Is there any way or chance to put or argue that it was clear the testator only intended to leave her estate to the children as those were the only names included the words of his will and that the testator’s ill health condition (Mental incapacity) has precluded him to make any alteration to his will. My mum who is living has since amended her mirrored Will she has written with my dad. We are undergoing extreme stress and especially my mum who is grieving the death of her husband and her youngest daughter. Hope we can have your thoughts on the above.
Many thanks in advance for your kind reply.
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Siobhan Smith
4th May 2021 at 11:42 am
Hi Alan,
I’m terribly sorry to hear of the recent passing of both your father and sister. Under section 33 the share of your father’s estate that your younger sister would have inherited will have passed to trust for her minor child for them to inherit when they turned 18.
It is possible that the clause in your father’s will was worded in a way that would override s33, but to comment on this I would need to see a copy of the will. If this is possible please email [email protected] so I can see what we can do to help.
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Dave brigly
24th August 2021 at 10:36 pm
Hi Siobhan
Thank you for the article.
Would you mind confirming if I have understood this correctly ?
A parent has a will that leaves their estate to 2 children , One of those children pre deceases the parent . Once the parent dies, Section 33 would mean that the deceased child’s share of the estate would go to any children they may have. However Section 33 would not apply if there was a clear intention in the will for some other arrangement ( such as grandchildren are not to inherit or only surviving children inherit ) Thanks in advance Dave
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Siobhan Smith
1st September 2021 at 8:58 am
Hi Dave,
Your understanding is perfectly correct.
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Rebecca bowers
9th September 2021 at 1:34 pm
Hi Siobhan, thankyou for your article, it’s very useful. Just wondering if section 33 applies when the beneficiary disclaims a gift, does the gift automatically get passed to the beneficiary’s children. From my understanding section 33 only applies in the event of the beneficiary dying before the testator. In our case this isn’t true
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Siobhan Smith
13th September 2021 at 1:26 pm
Hi Rebecca, section 33A treats a beneficiary who disclaims a gift as though they have died immediately before the testator. Since for succession purposes the gift in the will would take effect as though the disclaiming beneficiary had predeceased section 33 would apply.
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Lynn carter
21st September 2021 at 9:47 am
Is my will I made before my only daughter was 18 still valid now she is 33,only child so everything is left to her.
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Siobhan Smith
21st September 2021 at 9:57 am
Hi Lynn, as long as your will was signed and witnessed correctly at the time it will still be valid. It may be worth reviewing your will though to make sure it is still ideal for your circumstances as some tax laws have changed since the last time you wrote your will. We recommend reviewing your planning every 3-5 years.
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Steve Smith
7th November 2021 at 12:06 am
Dear Siobhan,
Please could you assist me in the scenario below. The husband makes a will and leaves the residue to the spouse, daughter and sister in equal parts ‘absolutely’. If one of them beneficiary dies before the testator, am I correct in assuming the gift will go to the beneficiaries estate (s33)? How would it differ if say one of the beneficiary (sister) dies after the testator’s death and the sister does not have any family?
Thank you in advance.
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Siobhan Rattigan-Smith
11th November 2021 at 2:35 pm
Hi Steve, s33 only applies to gifts that the testator makes to their own children or descendants, so in your scenario it would only apply if the daughter died before the testator but not if the spouse or sister did. If the daughter died before the testator leaving children of her own then the 1/3 share that would have passed to her would pass to her children equally instead.
If one of the other beneficiaries died before the testator, or the daughter died leaving no children, then what would happen to that failed share depends on the way the will is worded. In many cases it would pass to whoever the surviving beneficiaries are, so each survivor would take 1/2 instead of 1/3. In other cases it would pass to a named substitute beneficiary.
If a beneficiary dies after the testator then they have still inherited their share of the testator’s estate because they have survived them. It would then pass according to their will, or if they had no will the intestacy rules.
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Jane Brooker
1st September 2022 at 12:39 pm
I cannot access the flow chart!
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Anthony Belcher
5th September 2022 at 10:54 am
Hi Jane,
Our apologies, there was a broken image. This has been updated now.
– Anthony
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Balaaj
19th December 2022 at 7:27 pm
Hi , I have come across my reading in my law class, I was wondering if S.33 applies but the child of the beneficiary who predeceased the testator was under 18 would it be contingent on him to be 18 or to be married or in other words: for him to get an vested interest? how would this be held? on trust?
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Siobhan Rattigan-Smith
20th December 2022 at 12:02 pm
Hi Balaaj, much would depend on the specific wording of the will as s33 can be disapplied by contrary intention expressed in the will but I will work on the assumption that the gift is a simple absolute gift to the testator’s own child ad not subject to any age conditions. If the child predeceased the testator leaving issue then those issue would take a vested interest in the deceased parent’s share. If the issue were under 18 their share would be retained on trust for them until 18 and this would be a bare trust. If the original gift to the testator’s child had been subject to an age condition then the same age condition would apply to their issue too, so that the interest the issue took under s33 would be contingent. You may also be interested in this blog piece here https://www.willwriters.com/blog/in-case-you-missed-it-naylor-v-barlow-2019/ on a fairly recent case that discusses this issue.
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Daisy
17th March 2023 at 11:14 pm
“so that no issue shall take whose parent is living at the testator’s death and so capable of taking”.
We have left our estate to be divided equally between our sons or to their children if our any of our sons predecease us. However, my husband believes that if the above section of the clause is added then this clause means that should a son predecease us then his share should pass to his children but that they won’t inherit if their mother is alive as she is technically their parent too. Is this correct?
Many thanks
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Manisha Chauhan
2nd June 2023 at 10:26 am
Hi Daisy, if one of your sons predeceased you leaving children of his own then the share that should have gone to him will pass to his own children in equal shares.
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Stephen smith
18th June 2023 at 12:06 am
Hi,
Would just like to clarify the S33. My father died 3 months ago and his father 1 month ago. My grandfathers will states that his properties are to be sold and divided equally between his 4 children. Does that mean that my fathers inheritance will come to his children? The will was handwritten and witnessed but not sure if a solicitor witnessed it. We have been told by our family that because it doesn’t say per stirpes in the will that we the grandchildren are not entitled to receive our fathers inheritance and it will go to his surviving siblings?
Many thanks
Stephen
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Manisha Chauhan
19th June 2023 at 9:43 am
Hi Stephen, I am afraid we are unable to provide specific advice on this. I would therefore advise you seek legal advice.
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Dennis Bull
21st September 2023 at 12:28 pm
Could I just confirm that any gift is covered by Section 33 and not just a gift of, the whole or part of, the Residuary Estate, or a pecuniary gift, I am thinking specifically of a gift of a ring to a son who has predeceased the testator, would Section 33 send the ring down to the deceased son’s only child?
I do believe this to be the case but confirmation would put my mind at rest.
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Manisha Chauhan
12th December 2023 at 11:47 am
Hi Dennis, your understanding is correct
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