Help understanding part of Wills Act 1837

katzy5

In my mothers draft will there has been a clause added that reads:

"Declaration excluding Section 33 of the Wills Act 1837.

Section 33 of the Wills Act 1837 (or any modification or reenactment of it) shall not apply to any gifts made by this will."

I've tried to search up the legislation but it is still not clear. If anyone can help me grasp what it actually means, that would be very helpful-]

Brie

Does this help?

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.

Will showed sufficient contrary intention to exclude section 33 of Wills Act 1837 | Practical Law (thomsonreuters.com)

Must say it doesn't make much sense to me - other than the last phase which says it gets included just to be sure. (of something)

Marcon

katzy5 said:

In my mothers draft will there has been a clause added that reads:

"Declaration excluding Section 33 of the Wills Act 1837.

Section 33 of the Wills Act 1837 (or any modification or reenactment of it) shall not apply to any gifts made by this will."

I've tried to search up the legislation but it is still not clear. If anyone can help me grasp what it actually means, that would be very helpful-]

If this is a draft will, perhaps asking the person doing the drafting is your best option - I don't imagine your mother is adding in bits like this for herself! It covers the situation where someone leaves a gift in their will to their 'issue' (a person's “issue” means all of their descendants, or offspring, including children) but the intended recipient of the gift dies before the person making the will. 

There are some good explanations freely available e.g. https://www.hunterslaw.com/julia-richards-examines-section-33-of-the-wills-act-1837/, or https://www.caseyandassociates.co.uk/why-should-i-know-about-section-33-of-the-wills-act-1837/ (which includes a useful 'worked example' which I think will give you the clarity you are seeking).