Q&As

Does section 33 of the Wills Act apply where a clause in a Will gives residue to 'such of my children who are alive at the date of my death'. There is no substitution and two of the six children pre-deceased the testator?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 06/07/2016

The following Wills & Probate Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • Does section 33 of the Wills Act apply where a clause in a Will gives residue to 'such of my children who are alive at the date of my death'. There is no substitution and two of the six children pre-deceased the testator?

Does section 33 of the Wills Act apply where a clause in a Will gives residue to 'such of my children who are alive at the date of my death'. There is no substitution and two of the six children pre-deceased the testator?

Section 33(1) of the Wills Act 1837 (WA 1837) provides that:

  1. where a Will contains a devise or bequest to a child or remoter descendant of the testator; and

  2. the intended beneficiary dies before the testator, leaving issue; and

  3. issue of the intended beneficiary are living at the testator’s death,

then, unless a contrary intention appears by the Will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death.

The result of this

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