Gift to a child who dies before the testator leaving issue (Wills Act 1837 s.33)

A gift normally lapses if the beneficiary dies before the testator, but s.33(1) of the Wills Act 1837 creates an exception. Where a will contains a gift to a child or remoter descendant of the testator, that beneficiary dies before the testator leaving issue, and issue are living at the testator's death, the gift takes effect as a gift to the issue living at the testator's death, unless a contrary intention appears by the will. Under s.33(3), the issue take through all degrees, according to their stock, in equal shares, the share their parent would have taken. Owen was Margaret's child, he predeceased her, and his children Ella and Sam were alive when Margaret died. Nothing in the will shows a contrary intention, so the £40,000 goes to Ella and Sam equally. Ella's age does not prevent her from taking; her share will be held for her until she can give a valid receipt.

Why A is wrong: s.33(1) saves the gift from lapse because Owen was the testator's child and left issue living at her death.

Why C is wrong: s.33 redirects the gift to Owen's issue directly; it does not pass through Owen's estate to Chloe.

Why D is wrong: The gift does not fail, so there is no partial intestacy.

Why E is wrong: s.33(3) gives the issue equal shares, and a minor can take under a will.