The court considered a suggested disapplication of section 33, and pointed out that there was no requirement that a contrary intention should be expressed in particular terms or that there should be any reference to the section. Nor was it necessary to demonstrate that a conscious decision had been taken to exclude the effect of the section. What appeared to be necessary was: ‘language of the will to show that the devise or bequest in question should not take effect, in the specified circumstances, as a devise or bequest to the living issue of the deceased beneficiary. Thus, an express provision for a different substitution (or none) in the event of death would seem to be sufficient. But the mere fact that the will would otherwise have a different effect will not suffice, as that is merely the trigger for the application of section 33.’
The question was not simply: what does the gift in the will mean? It was: does the will show an intention that s.33 should not have effect?
Judges:
Timothy Fancourt QC (sitting as a Deputy Judge of the Chancery Division)
Citations:
[2017] EWHC 1414 (Ch)
Statutes:
Jurisdiction:
England and Wales
Cited by:
Approved – Naylor and Another v Barlow and Others ChD 19-Jun-2019
‘two interesting and difficult questions on the law of wills: (1) Where issue succeed to the interest of a parent who predeceased the testator under s.33 of the Wills Act 1837 (as amended), do they take subject to any condition subsequent which . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 13 July 2022; Ref: scu.639673