Making a will and conditional gifts

Where a testator's child predeceases them, a gift left within a Will passes to their descendants unless a contrary intention states otherwise.

Summary

A recent case has considered the application of section 33 of the Wills Act 1837 to a gift in a will which was subject to a condition. Under Section 33, where a Will contains a gift to a child (or remoter descendant) of the testator, but that child predeceases the testator, their descendant will take their share of the estate unless there is a contrary intention stated in the Will. 

In the case of Naylor and Amat v Barlow and others [2019] EWHC 1565 (Ch), Mr Hine (‘the Deceased’) had four children, one of whom (Philip) predeceased him. Philip was succeeded by his two children, Mr Hine's grandchildren. 

The Deceased’s Will left his interest in his farming partnership to two of his four children, subject to the condition that they paid a sum of £15,000 to each of the Deceased’s two other children within nine months of his death to compensate them for the fact that they were not due to inherit any of the farming partnership.

Section 33 of the Wills Act applied in this instance, meaning that Philip’s children would take his share of the estate. However, the case considered the question of whether the condition set out in the Deceased's Will also bound Philip’s children. They were unable to comply with the condition within the nine month timescale because they were unaware of any such condition.

The court held that ignorance of a condition does not make it impossible or incapable of fulfilment. On the facts, the condition had not been satisfied and therefore Philip’s children would not receive the share of the farming partnership their father would otherwise have taken.

Probate of the Deceased’s Will was granted some three years after his death, which begs the question of how Philip’s children could have been made aware of the condition. Nevertheless, His Honour Judge Hodge considered that the Deceased’s intentions were clear; his Will stated in no uncertain terms that the condition was to be met within nine months of his death (and not within nine months from notification of the condition).

Comment

The case is a reminder to Executors and potential beneficiaries not to delay in taking action after a death. Failure to act quickly could result in conditions being inadvertently missed.

The case also highlights the importance of considering the potential implications of attaching conditions to gifts in Wills. Keeping Wills under regular review is equally important. Had the Deceased updated his Will following Philip’s death, he could have made his intentions for Philip’s “share” of the estate clear, meaning that the protracted (and, no doubt, costly) litigation in this case could have been avoided.  

If you have any questions or would like to know more about our legal update, please contact Lorraine Wilson (Solicitor).

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