When a beneficiary dies before the testator, the gift or legacy to them will lapse/fail and fall into the residue.

Under section 33(1) of the Wills Act 1837 as amended by the Administration of Justice Act 1982 s19, if 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 the issue of the intended beneficiary are living at the testator’s death, then subject to any contrary intention in the Will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testators death.

It is usually advisable to make an express substitutional provision in the Will rather than to just rely on the statutory provision taking effect. Doing this will allow for the avoidance of difficulty and uncertainty in the will. A failure to provide express instructions in a will may result in s33 being applied in a manner that may be contrary to the wishes of the testator. An express substitutional provision such as the following may be included:

“My trustees shall divide my residuary estate equally among those of my children who survive me [and attain 21] but if any of them dies before me [or before attaining a vested interest] his issue shall [upon attaining 21] take equally [per stirpes] the share which my deceased child would otherwise have inherited but none of my issue shall be entitled to benefit while his parent is eligible”.

In cases where a testator does not wish for the provisions of s33 to apply to their will, then they may include a declaration that it shall not take effect:

“Section 33 of the Wills Act 1837 (or any modification or re-enactment of them) shall not apply to any gifts made by this Will.”

Section 33 Wills Act 1837 applies where a testator dies after 31 December 1982 and 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
  • The issue of the intended beneficiary are living at the testators death

 

Then, unless there is a contrary intention in 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(3) provides that:

Issue take in equal shares if more than one, any gift or share which their parents would have taken, and so that no issue shall take whose parents is living at the testator’s death and so capable of taking. Where a gift to a child of the testator is made subject to an age condition it is not clear whether their issue must meet the same age condition. If the testator wishes any issue who take by substitution to meet the same age condition then the gift should state this expressly.

Section 33(2) deals with class gifts. It provides that where:

  • A will contains a devise or bequest to a class of person consisting of children or remoter descendants of the testator; and
  • A member of the class dies before the testator, leaving issue; and
  • The issue of that member are living at the testator’s death, then, unless there is a contrary intention in 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.

Section 33(4) provides that:

(a) The illegitimacy of any person is to be disregarded; and

(b) A person conceived before the testator’s death and born living thereafter is to be taken to have been living at the testator’s death.

Section 33 applies only where a gift is made to a child or remoter descendant of the testator. In all other cases if a beneficiary predeceases the testator and there is no substitutional gift then the gift will lapse; it will not pass to their issue.

 

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