WillsSection 33 Wills Act

Section 33 of the Wills Act 1837, often referred to as the “anti-lapse rule,” is a provision that addresses the situation where a beneficiary named in a will predeceases the testator. This section is designed to prevent certain gifts in a will from failing, or “lapsing,” if the intended beneficiary dies before the testator.

Key Features of Section 33

The anti-lapse rule specifically applies to gifts left to a testator’s children or other descendants (referred to as “issue”). If a child or other issue of the testator is named as a beneficiary and predeceases the testator, the gift does not fail. Instead, it passes to the deceased beneficiary’s own children, if any, in equal shares.

The rule applies unless the will explicitly states a contrary intention. This means that the will specifies that the gift should not pass to the deceased beneficiary’s children; the anti-lapse rule will not apply. Contrary intention will most likely take the form of a specific exclusion of Section 33 in the will however, it may take other forms.

It’s important to note that Section 33 only applies to gifts to children or other issue of the testator. If a gift is left to someone who is not a child or issue of the testator and that person predeceases the testator, the gift will lapse unless the will provides otherwise. Section 33 does not apply to stepchildren.

Example Scenario

Suppose a testator leaves a gift to their child, but that child dies before the testator. If the child has children of their own, those grandchildren will inherit the gift in equal shares, provided there is no contrary intention expressed in the will. If one of those grandchildren had also predeceased the testator, leaving children of their own, the grandchildren’s children would receive the grandchild’s share.

When Should Section 33 be Excluded?

Section 33 should be excluded in a will in any event where a testator does not want a gift to a child or other issue to pass to that beneficiary’s own children. For example, Section 33 should be excluded in any of the following situations to avoid uncertainty.

• A will including a specific gift of jewellery to a daughter, and if that gift fails it should form part of residue.
• Residue of the will is split equally between children, and if one passes their share should pass to the surviving children.

In practice, it is best not to rely on the operation of Section 33 and it is better if the will is specific on whether a failed gift to issue should pass to that beneficiary’s children.

 

Photo by Johann Siemens on Unsplash

 

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