S33 Wills Act Queries

I have a double query for a married couple who have died within a short space of time of each other. Dad died first and left his share of the matrimonial home upon life interest trust to his wife for life followed by “after the death of my wife the trustees will hold the property fund for A and B in equal shares” ‘A’ predeceased dad and so I am not sure whether s33 Wills Act will apply as the original bequest was to the trustee not the child.

Mum then died and her will left her share of the property and her residue “to such of A and B AS SHALL SURVIVE ME and if more than one in equal shares” (I have added the bold for emphasis). Again ‘A’ predeceased and so I am wondering whether these words form a contrary intention and therefore again whether s33 will apply.

My instinct is that s33 does not apply in either case and that effectively all of both estates will therefore pass to child B who is the sole survivor and that child A’s three children will not benefit at all, but any thoughts would be gratefully received.

Paul Mounce
Graham & Rosen

The terms of the wills may not exclude s.33.

Suggest a comparison to the terms of the will considered in Ling v. Ling
(2002) WTLR 553 Ch.D, where it was held s.33 was not disapplied despite
the gift being to A and B or the survivor, which appears similar to the
terms of the mother’s will.

Paul Saunders

I recall that there was a recent (last 3 or so years) first instance decision (and I can’t remember the case name) where the judge held that a gift to ‘such of [children] as shall survive me and if more than one in equal shares’ was sufficient to disapply s 33. I thought at the time that common sense had triumphed.

Can anyone remember further details to help our colleague?

Jill MacMahon
Thackray Williams LLP

Jill, the case you are referring to is I believe Rainbird v Smith (2012).

Susan England
Robinson Allfree

Well done Susan, - Rainbird v Smith (2012) - that’s the one.

Commentators say that the decision may not be one to rely on completely, and if you are drafting a Will, an exclusion of s33 should still be included as a belt and braces move.

Jill MacMahon
Thackray Williams LLP