The Effect Of Section 33 Of The Wills Act 1837

Re estate of Ellen Beatrice Brackstone [2020]

In the case of Re estate of Ellen Beatrice Brackstone, the Court was faced with the question as to whether section 33 of the Wills Act 1837 was excluded by the wording used in the Will. Section 33 confirms that, unless a contrary intention is shown essentially excluding the effect of the section, where a legacy is left to child or relative of the deceased (legatee) and, at the date of death of the deceased, the legatee had already passed away, the children of the legatee will inherit his or her share. In this case, the wording of the Will of Ellen Beatrice Brackstone confirmed the following:

“I GIVE DEVISE AND BEQUEATH all of my real and personal property whatsoever and wheresoever situate to my trustees upon trust … for such of my children as shall survive me in equal shares namely [Sandra] and [David]” [my emphasis added]

The deceased died on 7th April 2018. By the time of the deceased’s death, Sandra had already passed away, leaving a daughter by the name of Holly.

As the sole executor of the estate, David defended Holly’s claim on the basis that he was the sole surviving child of the deceased and accordingly should be entitled to the entirety of the estate. Holly argued that she should be entitled to her mother’s share by virtue of Section 33. David argued that the wording highlighted above was sufficient to exclude the effect of Section 33.

The Court looked at the previous authorities some of which were conflicting and decided in favour of Holly. The Court held that the words used were insufficient to exclude the effect of section 33 in that specific case.

Comment

If you are preparing a Will it is therefore sensible, if you wish to exclude the effect of section 33, to state so expressly so as to avoid any future disputes between your beneficiaries.