I give my estate to my children in equal shares
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Here we examine what happens if a parent leaves a gift in their will to a child but that child dies before probate has been completed.
When a gift if left to a beneficiary in a will but that person dies the gift will lapse or fail. When a gift lapses it will fall into the residuary estate, unless there is a specific provision for someone else to benefit.
However, there are exceptions to this rule where the gift is to the children of the person who made the will.
This eventuality is covered by Section 33 of the Wills Act 1837.
Section 33(1) of the Wills Act 1837 states:
Where—
(a) a will contains a devise or bequest to a child or remoter descendant of the testator; and
(b) the intended beneficiary dies before the testator, leaving issue; and
(c) issue of the intended beneficiary are living at the testator’s death,
then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death.
In other words, if a parent leaves a gift to their child, and that child has already died with children of their own, then those children (the grandchildren of the person who made the will) shall receive the share that would have gone to their parent had they not died.
However, if a contrary intention appears in the will then the deceased child’s share may not pass in accordance with Section 33. In the 2002 case of Ling v Ling, it was held that where the will provided for gifts to legatees “living at my death”, this wording alone was insufficient to constitute a contrary intention. To exclude Section 33, something more was needed.
In Rainbird and another v Smith and others (2012), the court was able to find a contrary intention where the residuary gift was made to, “such of them my Daughters, the said [A, B and C] as shall survive me and if more than one in equal shares absolutely”. In this case therefore, the testator’s estate passed in equal shares to the surviving children and did not pass at all to the deceased child’s own children.
The effects of Section 33 are often overlooked and when drafting wills it is always recommended that the true intention of the testator (the person who made the will) is discussed. To err on the side of caution, we would expressly exclude Section 33 in the Will if this is the testator’s intention, and provide express substitute provisions. If a will has been poorly drafted and the testator’s true intention is not clear as in the case of Ling v Ling, then the executors may need to apply to Court for a directions order.
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