Hi this is different from the answer above so which is it?
My mother died and left in her will all estate to her sons absolute. However one of the sons has died prior to her death. He has a living son does he recieve 1/6 of the estate?
The other responce I recieved was
It depends on what the Will says basically. If the Will states that something along the lines of that your mother left her estate to her children but:“..PROVIDED THAT if any child of mine shall predecease me but leaving a child or children living at my death such grandchild or grandchildren of mine shall take absolutely..”Then this would mean that the child of your mother’s son who died before her would inherit the deceased’s son’s share. If there is no clause or no similar clause then the deceased’s son’s share would fall back in to the residuary estate and the other sons would inherit it. so which is it?
Hi me again.
Sorry but I think you may be wrong in my mothers will all boys are named by name so I believe the rulling by Mr John Baldwin QC Ling v Ling makes it clear that S 33 will not apply.
Or have I got this wrong
Sorry I may have given the wrong information
I am referring to
A residuary clause in a will showed sufficient contrary intention to exclude the application of section 33 of the Wills Act 1837. Thismeant that the issue of a predeceased child of the testator did not benefit. (Rainbird and another v Smith and others  EWHC 4276(Ch).)
FactsMrs Leader executed a will leaving the residue of her estate to her three daughters in the following terms:"I give my estate (including any property over which I may have general power of appointment or disposition by Will) to myTrustees Upon Trust ... (c) subject thereto hold the residue remaining and the income thereof ("my Residuary Estate") UPONTRUST for such of them my Daughters, the said JACQUELINE ANNE RAINBIRD JANET JONES of [address] andGWENDOLINE SMITH of [address] as shall survive me and if more than one in equal shares absolutely."One of the daughters predeceased Mrs Leader. Mrs Leader's executors asked the court to rectify the will using its powers under section20 of the Administration of Justice Act 1982 on the grounds that the will failed to carry out their mother's intentions because of a clericalerror.DecisionThe judge, Mr John Baldwin QC (sitting as a deputy judge) held that it was necessary to construe the will first before deciding whether itwas necessary to rectify it. Having construed the will, the judge found the following:The words used for the residuary gift were sufficiently clear to show that the testatrix intended to leave her estate only to thosedaughters who survived her. If the testatrix had wanted the children of predeceased daughters to benefit she would not have qualified thegift to her three named daughters with the words "... such of them as shall survive me" but would simply have made the gift "to mydaughters, A, B and C".
My mothers will names the sons by name and ends the paragraph with the words in equal shares abolutely.