VL requested a declaration that she was entitled to the entire estate of her father m after his death. The will said that if A (M’s wife) died within a month of M, the estate was to be held on trust for any child aged 21 or more surviving the M by a month. R, VL’s pre-deceased brother left a child AL. VL argued that the will disapplied section 33. AL argued that the requirement for a benefitting child to survive T by one month was not a limit on the class of beneficiaries only to those who had fulfilled the contingency, and that the will did not disapply the section.
Held: The application by VL failed. AL qualified as a beneficiary in the absence of an intention that M’s grandchildren would not benefit in the place of their deceased parent. However AL would not qualify until he reached 21, since his interest was subject to the limitation which would have applied to his late father’s gift.
Etherton J said: ‘Section 33(2) operates by way of including issue of the deceased child in the class, and limiting, by subsection (3), their interest to the gift or share which their parent would have taken. The issue within the class must satisfy the contingencies determining the date of distribution, as much as any other member of the class.’
Judges:
Etherton J
Citations:
[2002] WTLR 553, [2002] EWHC ChD 264
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – 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.639675