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Decision on s33 Wills Act 1837

1 October, 2020

In the recent decision of Deputy Master Lloyd in Ashton v Brackstone, it fell to the Court to consider whether a testamentary gift to “such of my children as shall survive me in equal shares” was in itself sufficient to exclude s33 Wills Act 1837.  The Court found that the Will did not exclude s33.  No extrinsic evidence was admitted under s21 Administration of Justice Act 1982, since no part of the will was meaningless, or ambiguous or ambiguous in light of surrounding circumstances.

Accordingly, the testatrix’s granddaughter, Holly Ashton, succeeded in her claim for a declaration that she was entitled to half of her grandmother’s estate.  Ms Ashton’s claim was opposed by her uncle, David Brackstone (brother of Ms Ashton’s late mother) who argued unsuccessfully that he was his mother’s sole heir.

The decision as to the true construction of the Will is consistent with Ling v Ling [2002] WTLR 553 and Hives v Machin [2017] EWHC 1414, which authorities the Court preferred to Rainbird v Smith [2012] EWHC 4276 (Ch).

Rupert Coe