Witness who is also a beneficiary

Home made Will states ‘I give equally my residuary estate to my daughter and son.’ No further provisions are in the Will.

There are 2 witnesses, one of whom is the son so he cannot benefit under the Will.

Do forum members agree that there is no contrary intention in the Will (on the basis of the wording above) and as such S.33 WA will mean that the son’s ‘share’ passes to his only daughter (who is over 18 and unlikely to agree to a variation) rather than to his sister or under the intestacy rules?

Sarah Arundel
Taylor Fawcett

In the absence of words of severance, it would appear to be a joint gift and so, on the face of the will, the estate passes wholly to the daughter.

Whilst s.33 would be expected to apply to the son’s share if the estate was given to them “equally”, a joint gift might in itself be a sufficient “contrary intention” to oust the application of s.33. If so, then I think it is a question of the testator’s intention rather than his words (applying the Supreme Court’s decision in Marley v. Rawlings).

Paul Saunders

My understanding is that “equally” has been held to be a word of severance and thus to create a tenancy in common.

Cliona O’Tuama

I’m not sure I agree with Paul’s suggestion that the gift appears to be a joint gift or quite what that term means.

Does not the mere fact that the gift was made “equally” mean that the beneficiaries acquire their interests as tenants in common not as joint tenants and hence s33 applies?

Malcolm Finney

The wording of section 15 is that any interest in the estate given to a witness, the wife or husband of a witness, or any person claiming under such person … “shall be utterly null and void”. If the gift never happened in law surely it can’t be saved by s33?

Iain Cameron
Star Legal

As Cliona and Malcolm have pointed out, I managed to miss that "equally"
was included in the opening words quoted, so that the intention was a
half share each to the son and daughter.

Ian Cameron raises a good point, and I think the granddaughter must take
"through" her father, so that there is an intestacy of the putative
share given to the son. I therefore suggest the daughter gets
three-quarters and the son a quarter share of the estate (and the
granddaughter, nothing).

Paul Saunders