section 33 Wills Act 1837

My client lost his wife three decades ago and would like to leave everything to his children equally in his will (he has a son who has no children of his own and a daughter who has her own children). He would like to exclude section 33 so that if his son dies before him, his daughter inherits his entire estate but if his daughter dies before him then his son will inherit his entire estate. He does not want any substitution clause in his will.

My interpretation of the intestacy rules and exclusion of section 33 are that on the event that both of his children predecease him, the residuary gift in his will fails and will be split as follows:

What would have been his daughter’s share of the estate (50%) passes to her children but what would have been his son’s share (50%) passes back up to the deceased’s brother (my client has no surviving parents).

My colleagues have been having quite a debate about whether section 33 applies in these circumstances and wonder whether anyone has any experience in dealing with this?

Emma Davies
masefield solicitors LLP

Presumable the Will will say something along the lines of ’ I leave my residuary estate to be divided equally between my son and daughter or to the survivor of them’ with a further clause excluding S.33.

If the son and daughter both then predecease the intestacy provision will apply to the whole estate and the daughters child(ren) will take 100% of the estate and nothing would pass to your client’s brother. If that is not the desired outcome your client will have to include a substitution clause.

Sarah Arundel
Taylor Fawcett

Would it not be simpler for your client to include a substitution clause to provide for the possibility of both children predeceasing him?

Cliona O’Tuama


Thanks for your responses, Cliona and Taylor. It would be easier to have a substitution clause but he’s a bit of an awkward client and doesn’t want one at all.

Emma Davies
masefield solicitors LLP

I agree with Sarah’s analysis.

If the client is against having a substitution clause, he needs to recognise that if both children die before him the entire estate passes to his grandchildren. Should he be against that proposition, then he needs to do something about it. However, if he is content to accept that situation, he also needs to be made aware that view is based upon the law as it currently stands, and there can be no certainty that the law will remain unaltered.

Should his son’s circumstances change, of course, that could also torpedo the client’s expectations.

Looks to me that the will file may need to include letters to the client clearly setting out the options that he will need to consider, whether in support of telephone/attendance notes or as stand-alone advice.

Paul Saunders

You are quite right about the need to add a further clause excluding s. 33, Sarah, and not just leave it hanging on the word “survivor”. That is just what the newly ensconced Mr Justice Fancourt decided was necessary in these circumstances last year, in Hives v Machin.

Thomas Dumont
Radcliffe Chambers