Lapse – Section 33 of the wills Act 1837.

In the majority of cases where a beneficiary dies before a testator, and there is no substitute beneficiary name, then the gift is invalid and fails. This is the doctrine of lapse.

Lapse can be avoided by naming a substitute beneficiary, or by making gifts to classes of beneficiaries. The most notable exception to the doctrine of lapse however,  is section 33 of the Wills Act 1837.

Section 33 operates to prevent lapse, where a testator makes a gift in their will to their own children, or remoter descendants.  It will operate unless expressly excluded, or unless a contrary intention is obvious.

For Section 33 to operate, the testator must make a gift by will to their child, or remoter descendants. That beneficiary must have predeceased the testator, leaving issue, and that issue must be living at the testator’s death.

Section 33 (3), provides that the issue will inherit stirpes;

Issue shall take under this section through all degrees, according to their stock, in equal shares if more than one, any gift or share which their parent would have taken, and so that no issue shall take who’s parent is living at the testator’s death, and so capable of taking.

So for example, let’s say the testator gifts the residue of his estate simply, ‘to my son A, absolutely’ and son A unfortunately dies before the testator. Provided son A died leaving issue of his own, Section 33 will work to prevent the gift of residue failing. Son A’s shares will pass to his own children in equal shares instead.

If we change the above example, so that son A had two children, grandchild B and grandchild C, and C also died before the testator, leaving issue of his own, the estate distribution would be; Son B would receive 50%, and son C, although deceased leaving two children, those children would receive 25% each.

Section 33 (2), also provides for this acceptation to apply for class gifts.

Where; –

A –    A will contains a devise, or bequest to a class of persons consisting of children or remoter descendants of the testator;


B –    A member of the class dies before the testator, leaving issue;


C –    Issue of that member are living at the testator’s death;

Then, unless a contrary intention appears by the will, the devise or bequest will take effect as if the class included the issue of it’s deceased member, living at the testator’s death.

Section 33 applies unless there is a contrary intention. The clearest form of contrary intention would be a clause expressly excluding Section 33. Contrary Intention may also be expressed by wording a clause that makes a gift to the testator’s issue, in such a way that the testator’s intention to give to somebody, other than the issue in substitution is clear. There are conflicting opinions on what constitutes contrary intention though; two notable interpretations came from the cases of ‘Ling v Ling’ (2002), and ‘Rainbird and another V Smith and others (2012).

In the ‘Ling v Ling’ case, a testator left his estate to his wife, if she survived him by one month, or to his children if they survived him by one month and reached 21. The gift to the children phased as to the beneficiaries ‘living at my death’, the testator’s wife and son predeceased him, with the son leaving a child of his own. The surviving daughter alleged that she was solely entitled to the estate.

As the wording ‘living at my death’, excluding the deceased son, from any benefit, and excluded Section 33. The Courts were not of the same opinion. It was held that Section 33 did apply, and the wording merely made explicit what was already implied; that a beneficiary must survive the testator to inherit.

However, in the case of ‘Rainbird’, in this case the gift was expressed as ‘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‘, one of the daughters predeceased the testator, so the question was whether the estate would pass only to the remaining two daughters, or whether the deceased daughter’s share would pass onto Section 33.

It was held that the wording was clear enough to show, the testator only intended to leave her estate to her daughters who survived her, as she had included the words ‘such of them as shall survive me’, This was made clearer by inclusion of the wording ‘and if more than one in equal shares’, as this implied that the final division of the estate between the daughters was not certain. It was dependant on how may survived.

To avoid any construction problems, like those above, many will writers choose to expressly exclude Section 33, and draft any substitutional gifts very clearly in the will itself. This makes sure that the testator’s intention is very clear, and avoids any unintended consequences.

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