Will showed sufficient contrary intention to exclude section 33 of Wills Act 1837

Practical Law UK Legal Update Case Report 5-532-3993 (Approx. 4 pages)

Will showed sufficient contrary intention to exclude section 33 of Wills Act 1837

by Practical Law Private Client

Background

Section 33 of the Wills Act 1837

Where a will contains a gift for the child of the testator and that child predeceases the testator, Section 33 of the Wills Act 1837 (section 33) inserts a substitute gift for all descendants of that deceased child who are living at the testator's death. This statutory mechanism does not apply if there is a contrary intention in the will. In Ling v Ling [2002] WTLR 553 ChD (Ling v Ling), where a will provided for gifts to legatees “living at my death” the court held that this was insufficient to constitute a contrary intention as the words made explicit what was already implied. There is divided opinion about what constitutes contrary intention in this context and, to err on the side of caution, many practitioners expressly exclude section 33.

Section 20 of the Administration of Justice Act 1982

The court has power to rectify a will if the will is so expressed that it fails to carry out the testator's intentions because of either of the following:

A clerical error (section 20(1)(a), AJA 1982).
A failure by the drafter to understand the testator's instructions (section 20(1)(b), AJA 1982).

Section 21 of the Administration of Justice Act 1982

Where the language in a will is ambiguous so that it is impossible to construe it to find the testator's intentions, section 21 of the Administration of Justice act 1982 allows extrinsic evidence of the testator's intention to be admitted.

Facts

Mrs Leader executed a will leaving the residue of her estate to her three daughters in the following terms:

"I give my estate (including any property over which I may have general power of appointment or disposition by Will) to my Trustees Upon Trust ... (c) subject thereto hold the residue remaining and the income thereof ("my Residuary Estate") UPON TRUST for such of them my Daughters, the said JACQUELINE ANNE RAINBIRD JANET JONES of [address] and GWENDOLINE SMITH of [address] as shall survive me and if more than one in equal shares absolutely."

One of the daughters predeceased Mrs Leader. Mrs Leader's executors asked the court to rectify the will using its powers under section 20 of the Administration of Justice Act 1982 on the grounds that the will failed to carry out their mother's intentions because of a clerical error.

Decision

The judge, Mr John Baldwin QC (sitting as a deputy judge) held that it was necessary to construe the will first before deciding whether it was necessary to rectify it. Having construed the will, the judge found the following:

The words used for the residuary gift were sufficiently clear to show that the testatrix intended to leave her estate only to those daughters who survived her. If the testatrix had wanted the children of predeceased daughters to benefit she would not have qualified the gift to her three named daughters with the words "... such of them as shall survive me" but would simply have made the gift "to my daughters, A, B and C".
The use of the words "and if more than one in equal shares" indicated that it was not certain what the exact division would be at the date of her death as it would increase if any of the daughters pre-deceased.

The judge was able to distinguish Ling v Ling on the basis that the construction of a will depended on its own particular wording and context and also on the basis that Ling v Ling had involved a very poorly drafted will that was "awkward and gramatically inept".

In case he was wrong in deciding that the wording of Mrs Leader's will was unambiguous, the judge went on to consider whether it would be permissible to use the power in section 21 of the Administration of Justice Act 1992 to admit extrinsic evidence to assist in deciding whether there was a contrary intention for the purposes of section 33. A leading text on will construction argued that this was not possible because, according to section 33, the contrary intention had to be plain from the wording of the will itself rather than from evidence outside the will. The judge did not agree with this view because section 33 was aimed at a contrary intention shown by the wording of the will as properly construed, and that exercise could involve calling on section 21 of the Administration of Justice Act 1982 for assistance. Although he did not need to do so, the judge was, therefore, able to refer to the testatrix's change of mind between first giving instructions to her solicitor and actually signing it. From this evidence it was clear that she only wanted to leave her estate to those of her children who were living at her death.

There was no need to call upon the statutory power in section 20 of the Administration of Justice Act 1982 as there had been no clerical error or failure by the solicitor to understand Mrs Leader's instructions.

Comment

Although this decision indicates that it may not be necessary for section 33 to be expressly excluded where the testator's intention is as clearly set out as the facts demonstrated here, drafting in an express exclusion may still be the safest course. As an alternative, if the executors had wanted the deceased daughter's children to benefit from a third share, they could have entered into a deed of variation so that the estate was split three ways. This would be a more cost effective solution and, in the case of a small estate, perhaps the only viable solution.

Case

Rainbird and another v Smith and others [2012] EWHC 4276 (Ch).

If you don’t yet subscribe to PLC, you can request a free trial by completing this form or contacting the PLC Helpline.

End of Document

Also Found In

Wills

Resource ID 5-532-3993

Published on 26-Jun-2013

Resource Type Legal update: case report

Jurisdictions

England
Wales