Taking issue with issue taking

John Smith has three children, Jack, James and Jenny, and in his Will he leaves his estate

"to such of my children who shall be living in my death and if more than one in equal shares".

Jenny dies before him so on his death, his estate passes equally to Jack and James as his surviving children. Right? Well, not necessarily.

What is Section 33 of the Wills Act 1837?

A legal provision which is often overlooked even by solicitors which says, in broad terms, that if you leave a gift in your Will to your child and that child dies before you, if the child leaves issue of their own (children, grandchildren, great grandchildren etc) they will automatically become entitled to their share of the estate. Unless a contrary intention appears by the Will. So, if Jenny left children of her own, would those children take her share of her estate?

It comes down to the question of what amounts to "a contrary intention" in a Will and there have been some interesting cases on the point.

• In the case of Ling-v- Ling [2002] it was held that the standard wording mentioned above did not constitute a contrary intention. It was held that the wording was simply standard wording used in Wills and did not show that the deceased had actually considered the point.
• However, in the case of Rainbird -v- Smith [2012] the Court held that very similar wording did amount to a contrary intention, which seemed to take the law back in the other direction (although the circumstances were slightly different because the Court was simply approving a settlement which had already been agreed between the parties).
• The case of Hives -v- Machin [2017] sought to clarify the position. In this case, Mrs Hives had used essentially the same wording as in the Ling case and it was again held that the wording did not constitute a contrary intention. This was partly because a Court will only interfere if the wording of a Will is meaningless or ambiguous on common usage, which wasn't the case with the wording used.

It therefore appears that the present position would be that Jenny's children probably would inherit but the common theme of all three cases is that the law is uncertain enough for the families concerned to have ended up fighting in Court. The message is that a Will should be worded in a way that it is clear enough to avoid any possible ambiguity or disagreement.

Key considerations

1. If you intend that if one of your children dies their own children should take their share of your estate, say so expressly in your Will. If, on the other hand, you would not intend that, include a clause in your Will to exclude s33 Wills Act 1837 to avoid any doubt.
2. These three cases are good examples of why it is best to use a suitably qualified solicitor to prepare your Will. Part of my work is dealing with matters where people have fallen out about Wills and the cause is often that the testator has written their own Will and used language that it does not have the legal meaning they thought it did. A lay person is unlikely to be aware of a legal provision dating back to legislation from 1837 but it can make a fundamental difference to the effect of a Will. The cost of a professionally drawn Will is much smaller than the financial and emotional effect of a dispute within the family.

When it comes to your Will, do not leave people to take issue.

For more advice about your Will or if you are involved in a dispute in relation to someone else's Will, contact Mark Jones.

This article was written by Mark Jones. Mark is a Partner in our Personal Law Department and is based in Harrogate.

Mark specialises in the creation and administration of trusts, tax planning and wills as well as probate work, particularly those where the family has fallen out and contentious issues have arisen.

You can contact Mark on 01423 502 211 or email directly.