Dear Sirs,
I should be grateful for the forum’s view on the practice of routinely excluding s.33 from will drafts, a practice favoured by the Practical Law will writing programme.
With kind regards,
Anthony Smith , ACIB, TEP
Williamsons
In my experience most families want s33 to take effect, but that’s obviously not always the case. However, I feel the exclusion runs a big risk of creating a family rift where adult grandchildren discover their uncle/aunt have taken their inheritance where their parent has pre-deceased the grandparent, but every family dynamic is different.
From PLC’s point of view I think that with a company which provides legal precedents it makes more sense for them to include a s33 exclusion clause by default giving the drafter the option to remove it than not include it in the first place and rely on them remembering to exclude where relevant.
Anthony Rogers
Fusion Partners
1 Like
To avoid any construction problems and unintended consequences or later challenges, 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.
See Ling v Ling [2002] WTLR 553 ChD and Rainbird and another v Smith and others [2012] EWHC 4276 (Ch) for examples.
Andre Davidson
Finantium
I totally agree with Andre. Always exclude and draft express provisions in accordance with the client’s instructions
Simon Northcott