Georgina Thompson of our Wills & Trusts team has published a case summary on White v Williams [2025] EWHC 115 Ch which concerns a case of interpretation on whether the word ‘failure’ in the context of a gift in a Will should include a disclaimer by the beneficiary of that gift.
Background / Facts
Mr Elfed Williams (“the Deceased”) died on 11 June 2023 leaving a Will dated 31 March 2014 (“the Will”); whereby he appointed Mr David White as his sole executor.
Mr White made a Part 8 claim to the High Court (Business and Property Courts) seeking directions as to the distribution of the Deceased’s estate.
The Deceased had a son called Keith. They were estranged. Nonetheless, by his Will the Deceased bequeathed 1/6th of his residuary estate to Keith. However, Keith (through his conduct) disclaimed his entitlement to the gift under the Deceased’s Will. Master Clark made an order to this effect as part of Mr White’s Part 8 claim.
The Will contained a substitutionary clause:
“(b) PROVIDED also that if at any time the trusts declared by Clause 6(a) above should fail then from the time of failure that share (and any part or parts of any share which may already have accrued to it under this provision) shall accrue to the other share or shares (and equally if more than one) the trusts of which have not at that time failed and be held on the trusts and with and subject to the powers and provisions affecting such other share or share.”
In light of Keith’s disclaimer, the question arose as to what was to happen to Keith’s 1/6th share? Should it (a) be shared between the five remaining residuary beneficiaries, or (b) devolve in accordance with the intestacy rules?
The answer to this question was dependent upon whether the word “failure” in Clause 6(b) of the Will extended to circumstances where a beneficiary had disclaimed the gift. If “failure” did extend to disclaimer, then the substitutionary gift clause (6(b)) of the Will would take effect and the five remaining residuary beneficiaries would receive an equally proportionate larger share. If, on the other hand, “failure” did not extend to circumstances where a beneficiary has disclaimed a gift, then the gift to Keith would lapse and would pass in accordance with the intestacy rules. This would mean that two of the residuary beneficiaries under the Will would take a larger share, and one additional person would benefit.
The Law
Master Clark applied the usual principles of interpretation of wills as set out in Marley v Rawlings [2015] AC 129 at paragraphs [19] to [22].
As part of his judgment, Master Clark noted s33A of the Wills Act 1837, and its corresponding provision with regards to the rules governing intestacy in s46A of the Administration of Estates Act 1925:
s33A of the Wills Act 1837:
Disclaimer or forfeiture of gift
“(1) This section applies where a will contains a devise or bequest to a person who—
(a) disclaims it, or
…
(2) The person is, unless a contrary intention appears by the will, to be treated for the purposes of this Act as having died immediately before the testator.”
S46A of the Administration of Estates Act 1925:
Disclaimer or forfeiture on intestacy
“(1) This section applies where a person—
(a) is entitled in accordance with section 46 to an interest in the residuary estate of an intestate but disclaims it, or
…
(2) The person is to be treated for the purposes of this Part as having died immediately before the intestate.”
In essence, where a person disclaims a gift which they were otherwise entitled to pursuant to the terms of a will or under the rules of intestacy, then they will be treated for the purposes of the relevant Act (Wills Act or Administration of Estates Act) as having predeceased the deceased.
Analysis / summary
When examining the extent to which s33A of the Wills Act 1837 could apply to the present case, Master Clark took note of the views of the authors of Williams on Wills; namely that s33A applied only “for the purposes of [the] Act”, in particular s33 of the Wills Act 1837, and not for all purposes generally.
Insofar as this relates to the present case, Master Clark noted that s33 of the Wills Act 1837 did not concern express substitution clauses, and that s33 had no impact on such clauses. He determined that it was not necessary to establish whether s33A(2) applied to s33 only, or whether s33A(2) extended beyond that to “all purposes”.
This was because if Keith was not treated as having predeceased the Deceased, then his disclaimer would result in a partial intestacy, unless the Will provided otherwise. In this case, the Will did provide otherwise – the substitutionary clause (Clause 6(b)) provided that if the gift of a residuary share were to fail, then it would accrue amongst the other shares. In Master Clark’s judgment, the natural ordinary meaning of “fail” or “failure” would extend to circumstances where there has been a disclaimer. Therefore, in accordance with the substitutionary clause (Clause 6(b)), because the gift to Keith had failed, his share would accrue amongst the other shares and be divided between the five remaining residuary beneficiaries.
If, on the other hand, Keith was treated as having predeceased the Deceased, the substitutionary gift to his children would also fail because Keith had no children. Therefore, in accordance with Clause 6(b), Keith’s share would be distributed amongst the five remaining residuary beneficiaries.
Therefore, in Master Clark’s opinion, the outcome was the same regardless of whether or not Keith was treated as having predeceased the Deceased, or not. The five residuary beneficiaries were each to receive an equally proportionate larger share.
Takeaway points:
- The extent of the application of s33A(2) of the Wills Act 1837 in this context remains unclear/undetermined.
- A disclaimed gift can amount to a “failed” gift in the context of substitutionary clauses.
Georgina is an experienced junior barrister with a wealth of experience in wills, trusts and probate matters. Find out more here.
This case summary is provided for information purposes only. It is not legal advice and should not be relied upon as such. The author does not accept any responsibility for its accuracy. Businesses and individuals should seek bespoke legal advice in respect of their particular positions.