Class Gifts in a Will UK: Construction, Closing Rules and Andrews v Partington
Updated: 18 May 2026 • Reading time: 7 min
A class gift is a gift in a will to a group rather than a named individual — “to my children equally,” “to my grandchildren living at my death.” Class gifts are common, practical, and flexible: they automatically include family members not yet born when the will was made. But they raise two important legal questions: who belongs to the class? And when is the class fixed so that shares can be calculated? The answers come from the rules of construction and the class-closing doctrine established in Andrews v Partington.
What Qualifies as a Class Gift?
A gift is a class gift where the beneficiaries are described by a shared characteristic rather than individually by name, and the share each member receives depends on how many qualify — the gift is collective, not a series of individual specified gifts.
Contrast with an individual gift: “to my children Anna, Ben, and Clare equally” is not a class gift — it is three individual gifts. If Anna predeceases, her third lapses (subject to s.33 Wills Act 1837); no fourth child joins the class. “To my children equally” is a class gift: a child born after the will is made joins the class and receives a share.
Who Belongs to the Class?
| Term in will | Who is included |
|---|---|
| Children | Biological + adopted children (Adoption and Children Act 2002 s.67); illegitimate children since Family Law Reform Act 1987; step-children excluded unless the will says so |
| Issue / descendants | Children and all their descendants to any degree; each generation takes only if the generation above is excluded or has predeceased |
| Grandchildren | Children of the testator’s children; adopted grandchildren included; step-grandchildren excluded unless stated |
| Nephews and nieces | Children of the testator’s siblings; same adoption and illegitimacy principles apply |
The class is assessed at the testator’s death (s.24 Wills Act 1837 — the ambulatory principle), unless the will provides otherwise. Children born before death are members; a child born after death is not (unless conceived before death — en ventre sa mère).
Why Class Gifts Need Closing Rules
Without closing rules, a class gift cannot be administered. If the testator leaves “£120,000 to my grandchildren equally” and new grandchildren keep being born after death, the executor cannot calculate each share. The class-closing rules fix the class at a defined point so that distribution can happen. Anyone born after that point receives nothing from the gift — the price of making administration possible.
The Rule in Andrews v Partington
Applied to common will provisions:
- “To my children equally” — class closes at the testator’s death (when living children become immediately entitled); children born after death take nothing
- “To my grandchildren equally” — if one grandchild is alive at death, class closes at death; if none are alive at death, class remains open until the first grandchild is born and entitled
- “To my grandchildren who attain 25” — class closes when the first grandchild attains 25; grandchildren born before that date but under 25 remain members; grandchildren born after are excluded
When No Member Is Alive at Death
If no member of the class is alive at the testator’s death, the class does not close at death. The property is held on trust. The class closes when the first qualifying member becomes entitled — those then living (and those en ventre sa mère) are included, and later-born persons are excluded. If it becomes impossible for any member to qualify (all potential parents have died childless), the gift fails and falls into residue.
Excluding the Andrews v Partington Rule
Andrews v Partington is a default rule of construction — the will can override it:
- “To such of my grandchildren as are living at the date of final distribution of my estate” — class stays open until distribution; grandchildren born after death but before distribution are included
- “To my children living at the date of this will” — narrows the class to those alive at execution; children born after the will but before death are excluded
Section 33 Wills Act 1837 and Class Gifts
Section 33 Wills Act 1837 (substituted for wills made after 1 January 1983) provides that where a gift is made to the testator’s child or remoter descendant who predeceases the testator but leaves issue who survive, the gift does not lapse — it passes to those surviving issue in equal shares.
In a class gift “to my children equally”: if one child predeceases the testator leaving two grandchildren who survive, s.33 saves that child’s share for those grandchildren rather than redistributing it among the surviving children. S.33 does not apply to gifts to siblings, friends, or other relatives who are not the testator’s issue.
Drafting Checklist for Class Gifts
- Define the class precisely — “my children” rather than “my family”
- State whether step-children are included — they are excluded by default
- Include a survivorship condition if appropriate — “such of my children as survive me by 30 days”
- Name a substitute class — “to my children equally, or if none survive me, to my grandchildren equally”
- Address the closing rule — if you want grandchildren born after your death included, say so expressly
- Consider a trust for contingent gifts — where minors or future interests arise, a trust vehicle holds the fund until entitlement vests
Frequently Asked Questions
What is a class gift in a will?
A class gift is a gift in a will to a group of persons identified by a shared characteristic — typically a family relationship to the testator — rather than by individual name. Examples: 'to my children equally', 'to my grandchildren living at my death', 'to my nephews and nieces'. The key feature is that the gift is collective: the size of each share depends on how many members the class ultimately contains. If the testator leaves £60,000 'to my children equally' and has three children, each takes £20,000; if a fourth child is born before the class closes, each takes £15,000.
What are the rules for construing a class gift?
A class gift is construed as speaking at the testator's death (Wills Act 1837 s.24 — the ambulatory principle). The class is assessed at the date of death, not at the date the will was made, unless the will expressly provides otherwise. Consequently: children born after the will was made but before the testator's death are included; a child born after the testator's death is not included (unless en ventre sa mère at the date of death). Adopted children are included in 'children' and 'issue' for wills made after 1 January 1976; illegitimate children are included since the Family Law Reform Act 1987.
What are class closing rules and why do they exist?
Class closing rules determine when a class gift stops being open to new members — when the class is definitively fixed and shares can be calculated. Without closing rules, the estate could never be distributed: if the testator leaves property 'to my grandchildren equally' and new grandchildren keep being born, the executor could not calculate each share. The class closing rules provide a pragmatic solution: once any member of the class is entitled to immediate payment, the class closes and is fixed at that point.
What is the rule in Andrews v Partington?
Andrews v Partington (1791) 3 Bro CC 401 established the primary class-closing rule for English law: where a class gift is made and any member of the class is entitled to immediate payment at the vesting date (usually the testator's death), the class closes at that moment and is fixed by reference to persons then in existence (and those en ventre sa mère). Later-born potential members are excluded. The rule applies to all class gifts unless the will shows a contrary intention. Its rationale is practical: it allows the estate to be distributed without waiting indefinitely for new members to be born.
What happens if no member of the class is alive at the testator's death?
If no member of the class is alive at the testator's death, the class does not close at death. The property is held on trust until: (1) the first member becomes entitled — at which point the class closes; or (2) it becomes impossible for any member to be born (e.g. all the testator's children have died without children) — at which point the gift fails and falls into residue. During the waiting period the property is held on trust with income accumulated or paid as directed.
How does section 33 of the Wills Act 1837 interact with class gifts?
Section 33 Wills Act 1837 (as substituted by the Administration of Justice Act 1982 for wills made after 1 January 1983) provides that where a gift is made to the testator's child or remoter descendant who predeceases the testator but leaves issue who survive, the gift does not lapse — it passes to those surviving issue in equal shares. In a class gift 'to my children equally': if one child predeceases the testator leaving two grandchildren who survive, s.33 saves that child's share for the grandchildren rather than redistributing it among the surviving children.
How should I draft a class gift in my will to avoid problems?
To draft an effective class gift: (1) define the class clearly — 'children' rather than 'family'; (2) state whether the class is assessed at death or at a later date; (3) deal with predeceasing members — include a substitution provision or rely on s.33 Wills Act 1837; (4) include a survivorship condition if appropriate ('to such of my children as survive me by 30 days'); (5) if you want to include grandchildren born after your death, override Andrews v Partington expressly ('including any grandchildren born before the date of final distribution of my estate'); (6) state whether step-children are included — they are excluded by default.
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