A will contains a specific gift of a property share to “such of my children as are living at my death and if more than one in equal shares”. There are two children and I wish to be sure that I understand correctly what happens if just one of them disclaims the gift.
S33 of the Wills Act 1837 is expressly excluded under the Will, and there are no grandchildren anyway. I note that S33A of that Act (which provides for the disclaimed gift to pass as if the original done had predeceased) only applies for the purposes of that Act/section, so it does not apply in this case.
My belief is that if just one child disclaims in this case the disclaimed gift will pass into residue (which is effectively disposed of under the Will), but would be glad of some reassurance that this is correct, as I can find no discussion on this particular issue. It is important, and a variation is not appropriate for other reasons.
If the gift is left to the two children jointly then a disclaimer by one is not possible; both must disclaim. Alternatively, presumably severance of the joint tenancy is possible followed by disclaimer.
I note the gift in question is to the children “in equal shares” so that they are tenants in common of the gift.
My understanding is that s.33A Wills Act 1837 stands on its own and would apply in this instance, so that the disclaimed benefit would accrue to the other child (s.33 WA 1837 having been specifically excluded).
With regard to Malcolm’s comments in relation to a joint gift, I suggest that a disclaimer in relation to a joint bequest, being inconsistent with the continuation of the joint tenancy, would be an act of severance (applying common law principles) causing the disclaiming beneficiary to sever their intertest from that of the other joint tenant(s) and, I suspect the effect would be for their interest to accrue to the other joint tenant(s) by virtue of s.33A WA 1837. I do not believe that s.33 WA 1837 would apply as the intention to create a joint legacy would appear to be a sufficient contrary intention.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Thank you, Malcolm and Paul, for your responses. I too had understood the use of the words “in equal shares” to create a tenancy in common, but may I pursue the issue of the application of s33A of the Wills Act a little further?
Subsection (2) of s33A of the Wills Act 1837 reads “The person is, unless a contrary intention appears by the will, to be treated for the purposes of this Act as having died immediately before the testator.” I do not believe there is any other provision in the Act (apart from s33) which deals in general with the lapse of a gift and in Williams on Wills the commentary reads “The provision in EDP(FRLS)A 2011 concerning wills is a narrower provision than that relating to intestacy. It means that the statutory substitution of issue under WA 1837 s 33 will operate as if the disclaiming beneficiary had predeceased the testator, but an express substitution clause in a will which substitutes other beneficiaries for a primary beneficiary in the event of the latter predeceasing the testator will not so operate.”
I understand this commentary to mean that the deeming effect of s33A will in practice only affect the operation of s33, and does not apply more widely to treat the disclaiming beneficiary as having died before the testator. In my case, as stated before, s33 is expressly excluded, so I reasoned that s33A would not apply to treat the disclaiming child as if he had died before the testator.
The wording of the Will provides an express substitution in the event of a child dying before the testator (“to such of my children as survive me”) but not in the event of disclaimer or lapse for another reason, and that is why I believe the disclaimed gift would fall into residue.
The child is living at the death so is entitled to a share in the property. if the gift is not adeemed and the estate is solvent. s33A(2) treats the disclaimer as not having survived the testator but not if the will shows a contrary intention. So unless the will provides specifically for the exact situation the other child will take the entire gift.
Your doubt arises because of s33A which is not excluded by the Will whereas s33 is. In my view s33A is not dependent upon s33 although its interaction with s33 is covered in s33(3). I am fortified by the Act which inserted s33A which deals not only with wills but also comparable situations in an intestacy. The purpose of the statute, Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011, was to enact the Law Commission’s recommendations as to disclaimer (and the forfeiture rule). The Explanatory Notes are particularly helpful, for what help such notes ever are as an aid to construction. https://www.legislation.gov.uk/ukpga/2011/7/notes/contents
s33 and s33A do not actually apply to the same persons. s33 applies to a child or remoter descendant of the testator or a class of them. s33A applies to any person at all, so much wider. And 33A applies to forfeiture which is of no relevance to s33
To me there could be no greater support for the proposition that excluding s33 only has no effect on the operation of s33A
S33A only has application wrt s33. It has no other relevance.
T (testator) leaves gift to X (who is not a lineal descendant of T). X survives T and X disclaims. S33A has no application.
Assume X is a lineal descendant of T and survives T and assume X disclaims. Under s33A X is deemed to have pre-deceased T and thus s33 applies (unless excluded in T’s will). In the absence of s33A this would not occur.
s33 is about avoiding lapse. s33A is about the effect of disclaimers and the forfeiture rule. If s33 was repealed s33A would stll have an independent function.
The explanatory notes to the 2011 Act make it abundantly clear that s33A is an independent provision
S____ection 2– Disclaimer or forfeiture of a gift under a will
This section makes analogous provision to that made by section 1 in relation to intestate succession for disclaimers or forfeitures of gifts under wills. It inserts a new section after section 33 of the Wills Act 1837 (“the 1837 Act”), and makes one consequential amendment to that section.
Subsection (2) inserts a new section 33A into the 1837 Act. It corresponds to the new section 46A set out in section 1(2).
Subsection (1) of the new section 33A specifies that the new section applies where a person either disclaims a gift under a will or is precluded from taking it by the forfeiture rule.
Subsection (2) of the new section 33A provides that in both these situations, the will is to be interpreted as if the person disclaiming or forfeiting had died immediately before the testator. The effect of this is that the person next entitled to the property will be able to inherit. This general rule does however give way to a contrary intention in the will. This is consistent with the provisions of section 33 of the 1837 Act, which also give way to a contrary intention in the will.
Subsection (3) of the new section 33A provides that, as in the analogous intestacy situation, the new rule gives way to any order the court may make under section 2 of the Forfeiture Act 1982 to give relief to the killer from the effect of the forfeiture rule.
Subsection (3) makes a consequential amendment to section 33(3) of the 1837 Act and corresponds to subsection (3) of section 1. Section 33(3) excludes a grandchild or remoter descendant of the testator whose parent is still alive at the testator’s death from inheriting. Subsection (3) avoids inconsistency with the rule introduced by section 33A by making section 33(3) subject to the new section 33A.
Thank you Jack and Malcolm, for your continued discussion.
I believe the reason for the comments in Williams on Wills as to the more limited effect of s33A is the inclusion of the words “for the purposes of this Act” in subsection (2). If the deeming effect of that subsection applies only for the purposes of the Act, then it presumably only applies where the Act makes express provision in relation to gifts to a beneficiary who has died before the testator, and s33 is the only section which contains such provision. If this analysis is wrong, then what is the meaning or effect of the words “for the purposes of this Act” in subsection (2)?
In the explanatory notes which Jack has helpfully quoted, it is interesting that in note 15 it states that s33A “makes one consequential amendment to that section”, meaning s33, suggesting that the amendment made by s33A is only to s33. And yet, as Jack says, the intended effect of the new section as expressed in note 18 appears to be wider, although again, it then goes on to refer only to s33. I suppose another question might therefore be whether s33A actually carries out the intended effect, and/or can its actual effect be altered by the explanatory notes? I believe the answer to this last question must be no, unless there is real ambiguity in the wording of the legislation.
It seems to me that if the intention is that s.33A only applies where s.33 is engaged, then Parliament would have included the provisions within s.33, rather than create a new, and separate, provision.
If one considers the use of the wording “for the purposes of this act” with its use in other legislation, e.g. s.142 IHTA 1984, it has a broad application.
Whilst Williams is generally superb, I have difficulty in accepting its authors’ views that s.33A is controlled by s.33. If it were the case, then I would have expected s.33A to have included a statement to that effect, as will usually be the case.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
It seems to me that there is an anomaly between s33 and s33A: s33 applies where “a descendant of the testator” predeceases whereas s33A applies where “a person” disclaims or is precluded by the forfeiture rule. If a person who is not a descendant of the testator disclaims then, under s33A, what will happen to their gift will depend on the normal rules relating to a legacy where the beneficiary has predeceased. However, if the disclaimant IS a descendant then s33 will also apply to pass that gift over to their issue (unless the application of s33 has been barred).
Whilst it is clear from the posts to date that there is a strong belief that s.33A does not do what the Law Commission appears to have expected, in Henderson v. Wilcox, 2015 (Henderson v Wilcox & Ors [2015] EWHC 3469 (Ch) (03 December 2015) (bailii.org)), the judge was satisfied that following the murder of the testatrix by her son, the substitutional gift in favour of a nephew should the son have predeceased took effect.
It is not clear whether there has been any other judicial interpretation since then.
Whilst it would be useful for the Law Commission to bring into its intended new Wills Act a provision which uncontestably sets up what it had originally intended, in view of the likely timescale for a new Wills Act, I wonder if there is any mechanism that could be adopted in the meantime to give effect to the Law Commission’s clear intention (which Parliament is understood to have agreed with).
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I note what Paul says about forfeiture and, to me, it highlights the fact that a disclaimer must be equally as independent of s.33 in the first instance, But I agree totally with Graeme Lindop’s analysis of the interaction with and application of s33 if the person disclaiming is a child or remoter descendant. s33(3) is subject to s33A so that the right of any issue to disclaim is not overridden, precisely recognising its separate sphere of operation. That analysis illustrates that s33 can indeed furnish one of “the purposes of this Act” within s33A(2) provided it has not been excluded.
