Death of a legatee before testator – do their children take the inheritance?

The answer to this question depends on the wording of the will and whether section 33 of the Wills Act 1837 applies.

This issue was reconsidered recently in the case of Hives v Machin [2017] EWHC 1414 (Ch). The will stated that the deceased left the residue of her estate:

“UPON TRUST for such of my son Peter my said son Eric and my said son Christopher who shall be living at the date of my death and if more than one in equal shares absolutely”

The wording appears to exclude substitution under the Act and hence the son who had died would not take a share to pass on to his own children. However, the judge found otherwise, and that, unless there is express exclusion of section 33, the daughter of the deceased’s son would take his inheritance.

The decision makes clear that the default setting is that the section applies, unless there is good evidence of an intention that it should not.

The case was also interesting in that the judge refused to admit extrinsic evidence under the Administration of Justice Act 1982 section 21. That section allows evidence to be admitted if the will or part of it is ambiguous or meaningless.  The judge found that that was not the case.  Although the judge excluded the extrinsic evidence, he found the will writers evidence “troubling”. This doubtless was a factor in the decision.

Looking at the judgment, it seems as if the judge bent over backwards to include the grandchild of the testator.  However, that is not to say similar wording might be read another way, given different circumstances.