Anti-Lapse Rule: What Happens When a Beneficiary Dies Before You
If a beneficiary dies before the testator, their gift usually lapses. But s33 Wills Act 1837 saves gifts to the testator’s own children — passing them to their grandchildren instead. Knowing how it works is essential for effective will planning.
Lapse Rule vs Anti-Lapse Rule
General lapse rule (default)
Applies to: all beneficiaries
If a beneficiary predeceases the testator, their gift fails and falls into:
- → Residue (if a specific legacy)
- → Intestacy (if a residue share)
s33 Anti-lapse rule (exception)
Applies only to: testator’s own children/descendants
If that child/descendant dies before the testator but leaves surviving children of their own, the gift passes to those grandchildren instead of lapsing.
Who Does s33 Apply To?
s33 APPLIES to gifts to:
- ✓The testator's children (biological and adopted)
- ✓The testator's grandchildren
- ✓The testator's great-grandchildren
- ✓Any other remoter descendants of the testator
s33 does NOT apply to gifts to:
- ✗Siblings or other relatives (not descendants)
- ✗Friends, employees, neighbours
- ✗Charities or organisations
- ✗Stepchildren (not blood/adopted descendants)
- ✗Nieces, nephews, cousins
Frequently Asked Questions
What is the general lapse rule for gifts in a will?
The general rule under English law is that a gift in a will lapses — fails — if the beneficiary dies before the testator. A lapsed specific legacy falls back into the residue of the estate (and passes under the residue clause). A lapsed share of residue passes on intestacy (as if there were no will for that share). This is a simple and often harsh rule. Example: a testator leaves '£50,000 to my friend James'. James dies before the testator. The £50,000 falls into residue — it does not pass to James's family. If the testator intended James's children to take instead, the will needed a substitution clause ('to James, and if James shall predecease me then to his children in equal shares').
What is the s33 Wills Act 1837 anti-lapse rule?
Section 33 Wills Act 1837 (as amended) creates a statutory exception to the lapse rule, but only for gifts to the testator's own children or remoter descendants (grandchildren, great-grandchildren, etc.). If: (1) A gift is made to a child or remoter descendant of the testator; (2) That child or descendant dies before the testator; (3) But leaves children (or remoter descendants) of their own who survive the testator — then the gift does not lapse. Instead, it passes to those surviving issue (children or descendants) of the predeceased beneficiary, as if the predeceased beneficiary had died immediately after the testator. The anti-lapse rule applies automatically — the testator does not need to include special wording for it to operate. It applies equally to specific legacies and shares of residue.
Does the s33 anti-lapse rule apply to gifts to non-descendants (friends, siblings, charities)?
No. Section 33 Wills Act 1837 applies only to gifts to the testator's own children and remoter descendants. It does not apply to: (1) Gifts to siblings, parents, aunts, uncles, or other relatives who are not descendants of the testator; (2) Gifts to friends, employees, or other non-relatives; (3) Gifts to charities; (4) Gifts to stepchildren (who are not blood or adopted descendants). For all these beneficiaries, the general lapse rule applies — if they die before the testator, their gift lapses into residue (or, if it is a residue share, passes on intestacy). To protect against lapse for non-descendants, the testator must include an express substitution clause in the will.
How can a testator exclude or override the s33 anti-lapse rule?
Section 33 Wills Act 1837 can be excluded or modified by an express contrary intention in the will. Common methods: (1) Lapse clause: 'If any beneficiary shall predecease me, their gift shall lapse and fall into residue' — this expressly overrides s33 for all beneficiaries; (2) Substitution clause to specific persons: 'To my son Tom, and if Tom shall predecease me then to my daughter Sarah' — this directs the gift to Sarah rather than to Tom's children as s33 would; (3) Survivorship condition: 'To my daughter Amy if she shall survive me by 30 days' — if Amy does not survive by 30 days, the gift lapses (subject to s33 applying to her share if she leaves children); (4) Class gifts: 'To my children in equal shares' — this is a class gift and generally operates so that if one child predeceases, their share accrues to surviving class members (unless s33 applies to save it for that child's issue).
How does the anti-lapse rule interact with a residue clause?
Section 33 applies equally to a share of residue as it does to a specific legacy. Example: a testator's will leaves the residue equally to two daughters, Alice and Beth. Alice dies before the testator, leaving two children (grandchildren of the testator). Under s33: Alice's half-share of residue does not lapse. It passes instead to Alice's two children in equal shares (one quarter each). Beth takes her half; Alice's two children take one quarter each. Without s33 (or if s33 were excluded), Alice's half would pass on intestacy (to the testator's own intestacy beneficiaries — which might or might not be the same people). An important point: if Alice dies before the testator and Alice had no children, s33 has no application — the share then lapses normally and passes on intestacy.
Include Substitution Clauses in Your Will
Express substitution clauses in your will prevent confusion about who receives a gift if a beneficiary dies before you. The WillSafe kit from £19.97 for England and Wales.