The High Court’s recent decision in James v James, a case in which our firm acted for the successful claimant, provides important guidance on the circumstances in which section 33 of the Wills Act 1837 (“section 33”) can be displaced by will drafting.
The judgment serves as a reminder that wording which appears straightforward to both testators and practitioners may not be sufficient to exclude the statutory substitution provisions applicable where a child of the testator dies before them leaving issue.
More broadly, the case highlights the importance of careful drafting, the limits on attempts to rely upon changing family circumstances when interpreting a will, and the need for probate practitioners to carefully establish beneficial entitlement before administering an estate.
The dispute
The case concerned the will of Constantia James, executed in 1994. Clause 9 of the will provided for the residuary estate to be held for the testatrix’s two sons, Mark Anthony James and Jonathan Sylvester James, “as shall survive me”. The clause also contained a substitution provision relating to issue taking in certain circumstances. Mark Anthony James predeceased the testatrix in 2017, leaving one child, Olivia Priscilla James. The question for the court was whether Olivia inherited her father’s share of residue under section 33 of the Wills Act 1837 or whether the entire residue passed to the surviving son.
Master McQuail concluded that section 33 applied, with the result that Olivia was entitled to take her father’s share by statutory substitution.
Why “as shall survive me” was not enough
Section 33 provides that, unless a contrary intention appears in the will, a gift to a child or remoter descendant of the testator will take effect in favour of that beneficiary’s issue if the beneficiary predeceases the testator leaving surviving descendants.
The key issue in this case was whether the survivorship wording “as shall survive me” demonstrated the requisite contrary intention.
The court held that it did not. Master McQuail accepted the claimant’s submissions that survivorship wording identifies the primary beneficiaries who are to take if alive at the testator’s death, but does not necessarily address the separate question of whether section 33 should operate if one of those beneficiaries dies leaving issue. The judgment confirms that words such as “survive me” or “living at my death” do not, without more, demonstrate a clear intention to exclude the statutory substitution.
In reaching that conclusion, the court derived particular assistance from the cases of Ling v Ling, Hives v Machin and Burns v Bean, authorities which have consistently emphasised that section 33 is engaged unless the will clearly contracts out of it. The court also noted that subsequent decisions have treated the case of Rainbird v Smith as exceptional on its facts.
The practical lesson from the case is clear: where a testator intends a gift to lapse entirely if a beneficiary predeceases them, the will should say so expressly. Reliance upon general survivorship wording may not achieve that result.
The limits of testamentary interpretation
The judgment is also noteworthy for its treatment of the defendant’s argument that the court should consider the deterioration in the relationship between the deceased and her granddaughter in later years.
The court rejected that approach. Master McQuail observed that the relevant perspective is that of the testator at the time the will was executed, not many years later. The will was signed in 1994, before the claimant had even been born. Evidence of a later family disagreement was therefore incapable of informing the construction of the clause.
This aspect of the judgment reinforces an important distinction between construction and speculation. Courts interpret the language used by the testator. They do not rewrite wills to reflect assumptions about what the deceased may have wanted decades later in the light of changed family circumstances.
For practitioners, the decision is a useful reminder that the “armchair principle” has limits. Context can assist interpretation, but it cannot be used to override clear language or to import intentions which are unsupported by the wording of the will itself.
Drafting implications
The dispute arose from a will drafted more than 30 years before the court was asked to determine its meaning. Unsurprisingly, the drafting file had long since been destroyed.
That fact alone demonstrates why precision in drafting remains so important. Many wills contain standard survivorship provisions which may appear uncontroversial when prepared. However, as James v James demonstrates, uncertainty can emerge years or even decades later when deaths occur in an order not anticipated by the testator.
Practitioners should therefore carefully consider expressly addressing whether section 33 is intended to apply or if it is to be excluded. A will that leaves this issue unstated may inadvertently create scope for dispute and litigation many years later.
Lessons for probate practitioners
The case also provides useful guidance for contentious probate and estate administration practitioners.
The issue arose because the claimant’s standing to pursue related proceedings depended upon whether she was a beneficiary under the will. Establishing beneficial entitlement was therefore a necessary precursor to resolving the wider dispute.
Whenever a beneficiary who is a child or remoter descendant of the testator has predeceased, practitioners should carefully consider the potential application of section 33 before making assumptions about entitlement or distribution. Failure to do so may expose personal representatives to unnecessary risk and expense.
Conclusion
James v James is a helpful reminder that survivorship clauses and exclusion of section 33 are not synonymous. Acting for the successful claimant in this matter, we saw first-hand how a seemingly straightforward provision drafted decades earlier generated a substantial dispute regarding entitlement.
The judgment confirms that words such as “as shall survive me”, without more, will not necessarily displace section 33. For will drafters, the message is simple: if statutory substitution is intended to be excluded, say so expressly to avoid future problems arising.
For probate practitioners, the decision underscores the importance of carefully analysing beneficial entitlement before an estate is administered to ensure no beneficiaries are wrongly omitted.
In both respects, James v James is likely to become a useful authority in future disputes concerning the operation of section 33.
About the author
Jade Smith is an Associate in the Contentious Probate team at Myerson Solicitors, advising on a wide range of contentious probate matters, including Will validity disputes, Inheritance Act claims and disputes involving executors, trustees and beneficiaries. Jade acted for Miss James in the recent High Court case, successfully securing her inheritance and the removal of her uncle as executor. She takes an approachable, client-focused approach, providing clear, practical advice on complex and sensitive disputes.
The views expressed in this article are those of the author and not necessarily those of Today’s Wills and Probate.
