Q&As

Does section 33 of the Wills Act apply where a clause in a Will gives residue to 'such of my children who are alive at the date of my death'. There is no substitution and two of the six children pre-deceased the testator?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on: 06 July 2016
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Section 33(1) of the Wills Act 1837 (WA 1837) provides that:

  1. •

    where a Will contains a devise or bequest to a child or remoter descendant of the testator; and

  2. •

    the intended Beneficiary dies before the testator, leaving issue; and

  3. •

    issue of the intended beneficiary are living at the testator’s death,

then, unless a contrary intention appears by the Will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death.

The result of this provision is that a Legacy left to a child who predeceases the testator is treated as being a legacy to the children of that child. This statutory provision is an exception to the general rule that, as a legacy is imperfect until the death of

Chris Bryden
Chris Bryden

Barrister, 4 King’s Bench Walk

Chris was called to the Bar in 2003 and since that time has built a busy practice across a range of areas, with an emphasis on Chancery practice. He enjoys a well-deserved reputation for his knowledge and expertise in each area. He appears regularly in the County Court, Family Court and the High Court as well as various specialist Tribunals, and has been involved in cases up to and including the Supreme Court. He regularly is instructed at Appellate level. He has extensive and wide-ranging experience particularly in the areas of wills, probate and inheritance disputes; property including adverse possession, boundary disputes and issues arising out of trusts of land; company and commercial work and financial remedies. Chris is head of the Family Group and head of the Property Team at 4KBW.

Chris is the author of numerous articles in publications such as the New Law Journal, Counsel and Family Law, amongst many other titles, and is the co-author of Social Media in the Workplace: A Handbook (2015, Jordan Publishing).

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United Kingdom
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Key definition:
Substitution definition
What does Substitution mean?

The process whereby a divorcing spouse with a poor national insurance contribution record may substitute this for the better national insurance contribution record of their spouse to increase their basic state pension. This is no longer available for spouses who reach state pension age after 5 April 2016.

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