Section 33 query

vigman

Yorkshireman99 wrote: »

It is never wise to assume anything particularly where the decision could be controversial or potentially give rise to litigation. AFAIK the dependency issue only becomes relevant if a claim is made because someone has not been financially provided for. If the solicitor is th executor then it is his decision and he has insurance in case he gets it wrong.

Thanks. The executor is taking advice from a solicitor and now a barrister.

I would really like to point at something formal that clearly states the step children of the son who died before his father do not get a share the father's estate

This has all come about because in one place in the will it states that equal shares go to the father's children who survive him and in another place it omits to say 'who survive him'!

Two children have survived and two have died before the father. One of these has adopted children so they may now get the deceased parent's share if the paragraph 33 issue can't be solved. One had step children. Both these families had large amounts of money and or property secretly made over to them in the father's lifetime hence the unwillingness of the two surviving children (one of whom is executor) to share any of the remaining estate that they legally do not have to.

As is so often the case the two remaining children carried out out all the care for both their parents in their lifetime.

Vigman

vigman

Mojisola wrote: »

If they were financially dependent on him, wouldn't there be evidence in his bank accounts?

Thanks. In this instance both parents and step children were dependent on the state. However one parent, a son that died, had been given large amounts of money in his father's lifetime but this didn't touch any bank accounts. They could easily have been prosecuted for fraud by not declaring these gifts to the benefit offices for their means tested benefits.

Vigman

getmore4less

Do you have to declare gifts for means tested benefits?

That aside

You cannot be dependent on a dead person.

Any dependencies and claim on the estate should have happened when the dad died.

In simple terms, what I think needs clearing up, do the grandparents legacies fall into or through or some other way the dead child estate.


My reading of s33 is that the issue(children of the decease, blood or adopted) become the beneficiaries of that share.

Any previous dependancies are no longer relevant.

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What I did learn from this is that if you disclaim a legacy and have issue it goes to them not into the residue subject to clauses in the will that override this.

vigman

I have just found this case which is similar to the one we are discussing:

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

Resource type: Legal update: case report Status: Published on 26-Jun-2013 Jurisdictions: England, Wales

A residuary clause in a will showed sufficient contrary intention to exclude the application of section 33 of the Wills Act 1837. This meant that the issue of a predeceased child of the testator did not benefit. (Rainbird and another v Smith and others [2012] EWHC 4276 (Ch).)
Practical Law Private Client

Speedread

A residuary gift in a will to such of three named children "as shall survive me and if more than one in equal shares absolutely" was said to provide sufficient contrary intention so that section 33 of the Wills Act 1837 did not apply to introduce a substituted gift of a deceased child's potential share for the deceased child's descendants. The wording of the will was sufficiently unambiguous so that it was not necessary to go on to consider whether it could be rectified using the statutory power in section 21 of the Administration of Justice Act 1982.

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I think the situation we are discussing shows the same 'sufficient contrary indication'

Vigman

getmore4less

from the first post

We have just been informed that as wording from section 33 of the Wills Act was not in the will, Mr X's grandchildren may be due a share of the estate.

who informed you there were no clauses or that the wording resulted in a S33 distribution/substitution of issue


What does the will say for any legacies to now dead people.

You also have to be careful of classes of beneficiaries.

vigman

Thanks everyone. My real problem is that I am relaying this 3rd hand. Solicitor/barrister to family member, FM to my wife then me to the forum!

We had never heard of section 33 before, and I am glad I know about it now for my own use.

Everything was thrown up in the air when one part of the will, when talking about the children benefiting equally, said "who survive me" and in another part that is omitted.

Even more unusual is that two of the 'children' did die before their father although he could not alter his will after these deaths as he was in a home with dementia.

Their is an important meeting today with the solicitor and barrister where some decision will be made.

I also apologise if my postings are odd or contradicting. I have severe pain from chronic conditions (plus a recent hospital acquired infection!) and have even posted whilst on morphine.

This whole thing is an expensive mess mostly caused by intense and unnecessary secrecy and misplaced trust in someone who has benefited criminally over many, many years.

If it were me, I would simply divide the estate between the two surviving children as I know this is what the father intended. The widow with the adopted children would have to take legal action if she thought they were due her deceased husband's share of the estate, but just before her husband's death was settled with a large amount of money and property enacted by the executor in their then role as POA in the father's lifetime.

Thanks again

Vigman

vigman

There is one thing following the solicitor's meeting yesterday that I do need to know please.

The solicitor and barrister agreed that the will is a real mess and open to interpretation. They said that the executor would be liable if the estate was shared between the remaining children (and not the children of the deceased son) and then quoted someone who had been sued for the incorrect execution of a will 10 years later!?

In everything I have read, I understood that such a case had to be raised within two years of the publication of the will.

Any help/advice appreciated

TIA

Vigman