James v James [2026] EWHC 2190 (Ch)

Master McQuail handed down judgment in James v James [2026] EWHC 2190 (Ch) on 26 August 2026. Tomos Rees acted as sole counsel for the successful Claimant.

The judgment considers the statutory substitution provisions within section 33 of the Wills Act 1837. Section 33 provides that if a will contains a bequest to a child or descendant of the testator who predeceases leaving issue, then unless a contrary intention appears in the will the issue of the child or descendant is substituted in place of the predeceasing beneficiary.

The court determined that a residuary clause which provided for residue to be held for two residuary beneficiaries  “as shall survive me … and if more than one in equal shares” did not indicate a “contrary intention” so as to exclude the effect of section 33. Further, a proviso to the residuary clause which expressly substituted the residuary beneficiaries’ issue if the residuary beneficiaries predeceased did not exclude the operation of section 33 on the death of only one residuary beneficiary.

The judgment in James v James provides helpful clarification as to when section 33 will apply, particularly given an inconsistency in the authorities as to the effect of section 33 in respect of residuary clauses. While express wording is not necessary to exclude section 33, the decision follows a line of authorities indicating that the court will not infer a “contrary intention” from a clause providing that such beneficiaries “as shall survive” or “as are living” at the date of the testator’s death should share the residuary estate.

The full judgment can be found here.