Mrs M (divorced) made a Will leaving estate to children equally. At the time of making Will, 2 of 5 children had died leaving children behind.
Will does not exclude s33 or contain a survivorship clause or a “living at my death” just simply RESIDUE TO MY CHILDREN.
Sub residue is grandchildren.
My question is, would grandchildren who parents has deceased before Will was made, inherit?
I would say probably not, but I think it may be arguable.
s.33(2) is the relevant section, which provides:
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.
In this case, as the class was ‘my children’ but as, at the date of the will, the members of that class didn’t include the predeceased children, it is arguable that the children don’t come within the ambit of s.33(2)(a).
s.33 is designed to address members of an envisaged class (as at the date of the will) dying and what should happen to their share as at the date of death of the testator. In this case, the envisaged class as at the date of the will didn’t include the predeceased children in any event. If that was a drafting error, I’m not sure that s.33 was designed to correct it.
Thank you for your comment.
I am inclined to think that they would as grandchildren are included as substitute.
I don’t think the doctrine of lapse is relevant here due to the substitution and lack of s33 exclusion. However I appreciate what you’re saying as to whether they are classed as “children”.
The only issue is indeed the fact that they didn’t predecease her as such but were already deceased at the date of the Will.
Can anyone else share their thoughts?
It depends on the full wording in the will.
My interpretation of section 33 of the Wills Act 1837 is that if a beneficiary of a will predeceases the testator, that beneficiary’s children would receive the inheritance instead.
If the beneficiary had no children, then their share passes to the surviving beneficiaries.
However section 33 would not apply if there was a clear intention in the will for some other arrangement, such as “granchildren are not to inherit” or “only surviving children” etc
But as the beneficiary had already passed away when the will was written, sadly I don’t think they can be classed as a beneficiary as they did not “exist”