Myerson Secures Granddaughter’s Inheritance and Removal of Executor in High Court Victory

The central issue before the Court was whether the wording of the will excluded the operation of section 33 of the Wills Act 1837. Section 33 provides that where a person leaves a gift in their will to a child who dies before them, that gift will ordinarily pass to the deceased child’s own descendants unless the will demonstrates a contrary intention.

The defendant argued that he was the sole surviving beneficiary and that Miss James had no entitlement under the will. He also sought to rely on his understanding of the grandmother’s wishes, arguing that she would not have wanted Miss James to benefit.

On behalf of Miss James, Tomos Rees argued that section 33 applied, meaning she inherited in place of her late father, and that the wording of the will did not demonstrate an intention to displace the statutory protection afforded to descendants. The Court agreed.

In reaching her decision, Master McQuail considered several authorities concerning survivorship clauses and confirmed that wording such as “as shall survive me” is not, without more, sufficient to exclude section 33. As the judgment states:

“Silence is not enough to exclude the effect of section 33.”

The Court also rejected the defendant’s reliance on an alleged deterioration in the relationship between Miss James and her grandmother. The will had been executed long before Miss James was born and later events could not assist the Court in interpreting its meaning.

The Court concluded that there was no wording in the will clearly indicating that the share of a deceased child should pass entirely to the surviving child rather than to the deceased child’s descendants. As a result, section 33 operated in Miss James’ favour and she was declared beneficially entitled to her late father’s share of the residuary estate.

Jade Smith, Associate in Myerson’s Contentious Probate team, who acted for Miss James, said:

“This was an important outcome for our client, who faced losing her share of her late grandmother’s estate. Wills can be called upon many years after they were originally prepared and, where the wording is unclear, disputes can arise at what is already an extremely difficult time for families. This decision provides helpful clarity on the protection section 33 affords to the descendants of a beneficiary who dies before the person making the will.”

Tomos Rees of 5 Stone Buildings, counsel for Miss James, said: 

"This judgment helpfully clarifies the application of section 33 of the Wills Act 1837 when a testator's child predeceases. The decision underlines that courts will look for a positive intention to exclude the effect of section 33 in the wording of the will and exceptionally by extrinsic evidence. The effect in this case was to confirm that Miss James was substituted as a beneficiary in place of her father and so was entitled to a share of her grandmother's estate. The decision will apply more broadly to any predeceasing beneficiary who is a descendant of a testator and so will be of particular interest to will drafters and practitioners."