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:

testator, flow chart, section 33, wills act, 1837, the wills act 1837

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.

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