The 1837 Wills Act:

This month we complete the detailed look at the Wills Act 1837. As will writers are aware the 1837
Wills Act (WA1837), as amended, supplies the detailed background legislation that must be followed
whenever a will is drafted. The actual text of the Wills Act is provided along with the current
amendments and commentary as to the meaning and effect of the statute. By the addition of the full
text of the WA1837 (as amended) will writers have the opportunity to read the actual words of this
vital legislation which governs the way in which wills are validly conceived, drafted, interpreted and
executed.

You should read the statutory 1837 Wills Act text extracted and the associated notes carefully and
then answer the usual 15 CPD questions. Sections that are not mentioned below have been repealed.

23 A devise not to be rendered inoperative by any subsequent conveyance or act.

No conveyance or other Act made or done subsequently to the execution of a will of or relating to any real or
personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent
the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall
have power to dispose of by will at the time of his death.

Section 23 confirms the primacy of the 1837 Wills Act in giving effect to a will, unless the will is revoked
using the provisions of such an Act in preventing the operation of that will.
24 A will shall be construed to speak from the death of the testator.

Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and
take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall
appear by the will.

Annotations:

Modifications etc. (not altering text)

C1S. 24 applied by Married Women's Property Act 1893 (c. 63), s. 3

In general terms a Will takes effect as if it has been executed immediately before the death of the
testator, in relation to all of the subject matter of the gifts contained in the Will. Hence the expression
“the Will speaks from death”.
Unless there is a contrary intention expressed in the Will the subject matter of a gift is applied at the
testator’s death, whether the gift is either specific or general.
Where the Will contains a gift of “all of my shares in ABC Limited” and in the absence of any express
contrary intention the gift will comprise all of the shares held by the testator on the date of his death.
Thus shares purchased after the date of the Will may be included; but shares that are disposed of after
the date of the Will may be excluded.
When at the date that an instruction is taken from the testator, reference is clearly made to the subject
matter of a gift that is in the possession of the testator at that time, a contrary intention is implied.
For example in Re Sikes [1927] 1 Ch 364 the testator’s instruction referring to “my piano” did not
extend to a replacement piano that he owned at the date of his death. The gift therefore failed by
ademption – as the property, which was identifiable some time before the testator’s death did not
form part of his estate at the date of his death. The need therefore when taking instructions is to
identify clearly the subject matter of the gift and if necessary to draft a clause which for example takes
account of proceeds of the sale or replacement of that gift.
The effect of section 24 Will Act 1837 can be excluded by the use of express words. For example by
defining the date on which the subject matter to be dealt with by the Will is to be ascertained.

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However a will writer should take care when drafting the words expressing the testator’s intention to
use precise words: words such as “now” or “at present” are not conclusive enough to overturn the
prima facie intention that the Will speaks from death; that is the date of the testator’s death. In the
event of uncertainty the Will provisions must be considered as a whole.
If section 24 of the 1837 Wills Act is excluded by contrary intention and the Will contains a provision
that is to speak from the date of the Will, then if the Will is subsequently republished by a later (second
or more) execution or a later codicil, the effect will be that the Will now speaks from the date of that
republication or codicil – unless a contrary intention is expressed.
25 Residuary devise shall include estates comprised in lapsed and void devises.

Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or
intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of
the devisee in the lifetime of the testator, or by reason of such devise being contrary to law or otherwise incapable
of taking effect shall be included in the residuary devise (if any) contained in such will.

This section introduces the doctrine of lapse, which confirms that a gift by will normally (unless subject
to a contrary intention) lapses in circumstances where the donee predeceases the testator; so that
the estate of the donee can only claim the benefit if the donee has acquired some interest in the
property before he died. But see section 33 of the Wills Act 1837 below for a special exception, which
is made in the case of children of the testator who predecease him. The effect of the clause has been
examined in the context of secret trusts set up “dehors” (outside) the will for example in the cases of
Re Gardner (No: 1) [1920] 2 Ch 523 and Re Gardner (No: 2) [1923] 2 Ch 230.
26 A general devise of the testator’s lands shall include copyhold and leasehold as well as
freehold lands.

A devise of the land of the testator, or of the land of the testator in any place or in the occupation of any person
mentioned in his will, or otherwise described in a general manner, and any other general devise which would
describe a . . . F1 leasehold estate if the testator had no freehold estate which could be described by it, shall be
construed to include the . . . F1 leasehold estates of the testator, or his . . . F1 leasehold estates, or any of them,
to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary intention
shall appear by the will.

Annotations:

Amendments (Textual)

F1Words repealed by Statute Law (Repeals) Act 1969 (c. 52), Sch. Pt. III

Clause 26 speaks for itself increasing the remit of the Wills Act.
27 A general gift shall include estates over which the testator has a general power of
appointment.

A general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupation
of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any
real estate, or any real estate to which such description shall extend (as the case may be), which he may have
power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a
contrary intention shall appear by the will; and in like manner a bequest of the personal estate of the testator, or
any bequest of personal property described in a general manner, shall be construed to include any personal estate,
or any personal estate to which such description shall extend (as the case may be), which he may have power to
appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary
intention shall appear by the will.

Every will writer should ensure that each Will drafted includes a gift of residue. Failure to include a
valid gift of the residuary estate will result in part of the testator’s estate passing on the intestacy
rules. Section 27 makes certain that all of the estate not otherwise disposed of is dealt with by an
unlimited gift of residue, including any general power of appointment held by the testator over trust

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property, being either real or personal property; especially to ensure that any trust default provisions
are prevented from taking effect, causing unintended consequences.
Where the testator exercises a power of appointment good practice requires that an express provision
confirming the testator’s wishes should be included in the Will; so that there is no risk of the testator
being unaware that the Will is also dealing with the testator’s interest in trust property, see Gibbons
v Nelson [2000] Lloyd’s Rep PN 603. In which the court criticised the solicitor for failing to establish the
client’s intentions regarding the destination of trust property under his control.
The provision within section 27 does not apply to any special or hybrid powers of appointment, which
act to restrict the actions of the appointee; but the section does apply even if the power is created
after the Will has been executed. The property to which the power relates must be carefully and fully
described within the Will.
Any power to which section 27 does not apply can be exercised by Will, but only if the disposition is
expressed to be in exercise of that power of appointment.
28 A devise without any words of limitation shall be construed to pass as free.

Where any real estate shall be devised to any person without any words of limitation, such devise shall be construed
to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in
such real estate, unless a contrary intention shall appear by the will.

The fee simple or otherwise the whole estate or interest in real estate that is not made subject to
words limiting the interest passes freely, unless there is a contrary intention expressed in the will.
29 The words “die without issue,” or “die without leaving issue,” shall be construed to mean
die without issue living at the death.

In any devise or bequest of real or personal estate the words “die without issue,” or “die without leaving issue,” or
“have no issue,” or any other words which may import either a want or failure of issue of any person in his lifetime
or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue
in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary
intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being,
without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise:
Provided, that this Act shall not extend to cases where such words as aforesaid import if no issue described in a
preceding gift shall be born, or if there shall be no issue who shall live to attain the age or otherwise answer the
description required for obtaining a vested estate by a preceding gift to such issue.

Section 29 provides clear guidance as to the interpretation of words in a gift which import either the
requirement that a gift depends on the absence of a person’s issue (children) in his lifetime or at the
time of his death or indefinitely. The effect of the words are subject to an expressed or apparent
contrary intention in the Will. Examples of the words that can be used are “have no issue” or “die
without issue” or “die without leaving issue”.
The contrary intention can be implied from the context of the words in the Will. However if the words
written in the Will import an indefinite failure of issue – for example by entailing an interest in real
property, then section 29 can have no effect and the words written in the Will must be construed
according to their meaning.
30 No devise to trustees or executors, except for a term or a presentation to a church, shall
pass a chattel interest.

Where any real estate (other than or not being a presentation to a church) shall be devised to any trustee or
executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the
testator had power to dispose of by will in such real estate, unless a definite term of years, absolute or determinable,
or an estate of freehold, shall thereby be given to him expressly or by implication.

Section 30 lacks practical relevance.

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31 Trustees under an unlimited devise, where the trust may endure beyond the life of a person
beneficially entitled for life, shall take the fee.
Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such
trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given
to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust
may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple,
or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an
estate determinable when the purposes of the trust shall be satisfied.

An interest in real estate that passes by Will to trustees, where the beneficial interest has not been
given to any person for life and the purpose of the trust can continue beyond the life of any person,
shall not be determinable when the purposes of the trust have been brought to an end (satisfied).
[F1 33 Gifts to children or other issue who leave issue living at the testator’s death shall not
lapse.

(1) Where—
(a) a will contains a devise or bequest to a child or remoter descendant of the testator; and
(b) the intended beneficiary dies before the testator, leaving issue; and
(c) 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.
(2) Where—
(a) a will contains a devise or bequest to a class of persons consisting of children or remoter descendants of the
testator; and
(b) a member of the class dies before the testator, leaving issue; and
(c) issue of that member are living at the testator’s death,
Then, unless a contrary intention appears by the will, the devise or bequest shall take effect as if the class included
the issue of its deceased member living at the testator’s death.
(3) Issue shall take under this section through all degrees, according to their stock, in equal shares if more than
one, any gift or share which their parent would have taken and so that [F2(subject to section 33A)]no issue shall
take whose parent is living at the testator’s death and so capable of taking.
(4) For the purposes of this section—
(a) the illegitimacy of any person is to be disregarded; and
(b) a person conceived before the testator’s death and born living thereafter is to be taken to have been living at
the testator’s death.]

Annotations:

Amendments (Textual)
F1S. 33 substituted by Administration of Justice Act 1982 (c.53, SIF 116:5), ss. 19, 73(6)
F2Words in s. 33(3) inserted (E.W.) (1.2.2012) by Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act
2011 (c. 7), ss. 2(3), 4(2) (with s. 4(4)); S.I. 2011/2913, art. 2

Modifications etc. (not altering text)

C1S. 33 excluded by Finance Act 1958 (c. 56), s. 29(2), (which s. 29(2) is repealed in relation to deaths occurring after
13.4.1975 and, so far as regards certain duties in relation to any death, by Finance Act 1975 (c. 7, SIF 99:3), ss. 52(2), 59,
Sch. 13 Pt. I, note (with a saving in s. 52(3) in relation to repayment or allowance in respect of certain sums paid before 13. 3.
1975 on account))

The provisions of the 1837 Wills Act section 33, as substituted by the Administration of Justice Act
1982 prohibit the doctrine of lapse from taking effect. In the event that a testator dies after 31
December 1982 section 33 provides that where:
a) a Will contains a devise or bequest to a child or remoter descendant of the testator,
and

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 b) the intended beneficiary dies before the testator, leaving issue; and
c) the issue of the intended beneficiary are living at the testator’s death,
then, unless there is a contrary intention in the Will, the devise or bequest shall take effect
as a devise or bequest to the issue living at the testator’s death and so capable of taking.
Section 33(3) provides that:
Issue shall take under this section through all degrees, according to their stock (line of ancestry), in
equal shares if more than one, any gift or share which their parent would have taken and so that
[F2(subject to section 33A)]no issue shall take whose parent is living at the testator’s death and so
capable of taking.
Section 33 applies to contingent gifts but it is not clear whether a substituted beneficiary would have
to satisfy the same contingency. Therefore the will writer must draft to make clear by including an
express provision whether or not any substitutional gift or substituted beneficiary must satisfy the
contingency.
Section 33(2) deals with class gifts and provides that where—
(a) a Will contains a devise or bequest to a class of persons consisting of children or remoter
descendants of the testator; and
(b) a member of the class dies before the testator, leaving issue; and
(c) issue of that member are living at the testator’s death,
Then, unless a contrary intention appears by the will, the devise or bequest shall take effect as if the class
included the issue of its deceased member living at the testator’s death.

Issue take according to their stock and in equal shares if more than one, the share that their parent
would have taken, but providing that no issue whose parent is living at the time of the death of the
testator may take, see section 33(3).
Section 33(4) confirms that the illegitimacy of any person is to be disregarded and a child in ventre sa
mere at the death of the testator and born living thereafter is taken to be living at the testator’s death.
Important note:
Section 33 only applies where a gift is made to a child or remoter descendant of the testator. In all
other cases a substitutional gift only takes effect if expressly provided by the Will.
Will writers should as a matter of good practice always include an express substitutional gift, made
regardless of the provisions of section 33. A declaration expressly excluding the effect of section 33
should be considered if the testator’s wishes as expressed by the Will do not depend upon the
requirements of section 33.
Update on the case of Ilott v Mitson:
Blue Cross, the RSPB and the RSPCA the charities in this case, have obtained leave to go to the UK
Supreme Court to appeal the England & Wales Court of Appeal’s decision in this case (2015 EWCA Civ
797).
Despite the care taken by Mrs Jackson to write a will disinheriting her daughter Heather Ilott, including
the provision of a professionally written letter of her wishes, the Court of Appeal awarded Mrs Ilott a
£50,000 award from the estate and £163,000 (about one-third of the estate’s value) to buy a house.
The award was successfully claimed under the Inheritance (Provision for Family and Dependants) Act
1975 (I(PFD)A1975) and was helpfully structured by the court so that Mrs Ilott would not have to give
up her state benefits.
Mrs Illott’s claim is opposed by all 3 charities who have obtained leave to appeal to the Supreme Court.
The issues for the Supreme Court to consider are:

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  Whether the Court of Appeal was wrong to set aside the award made by the High Court under
the (I(PFD)A 1975;
 Whether the Court of Appeal erred in its approach to the “maintenance” standard expressed
in the statute. The Court of Appeal determined that Mrs Illott’s income was not reasonable
financial provision for her maintenance; and
 Whether the court was wrong to structure Mrs Illott’s award so that her entitlement to state
benefits was preserved?
The case is important as a number of commentators have suggested that the decision may make it
easier for adult children excluded from their parent’s will to challenge the will using the 1975
Inheritance Act. Will a Supreme Court decision allowing the charities’ appeal make it harder for adult
children to make a successful claim?
Other questions to be answered by the hearing could include: i) would the court’s award been
different if Mrs Illott had been in employment and not reliant upon state benefits, ii) was the court’s
suggestion that Mrs Illott may have acquiesced in the estrangement from her mother relevant to the
court’s decision to make her an award against her mother’s wishes and iii) the Supreme Court may
want to address whether a child is entitled to have a reasonable expectation of an inheritance?
Now it is over to the judges of the Supreme Court to decide to what extent a testator’s right to
testamentary freedom remains unaffected.
Concluding remarks:
Although some of the issues that are dealt with in the contents of this paper may be well-known to
members, nonetheless they merit careful study because the failure of the will writer to deal correctly
with these situations could give rise to a claim for negligence.
This is the third and final paper for members dealing with the clauses of the 1837 Wills Act.
Important Reminder:
These notes are produced solely for the benefit of SWW members when completing the July CPD test
to gain 1 hour of structured CPD towards their annual quota. The notes do not represent legal advice
and no reliance can be made on the content of the notes in any particular or individual specific client
circumstances. Having read the notes members should cement their understanding by considering
further reading around the subject – cases details can be found by searching the case references using
BAILII or GOOGLE.

The Society of Will Writers

July 2016

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