Per Capita Distribution in a UK Will or Estate: How It Works and When It Applies

Per capita is a Latin phrase meaning 'by heads'. In the context of a will or estate, a per capita distribution means that each surviving beneficiary in the named group receives an equal share of the gift — the total is divided by the number of people who survive the testator and qualify to inherit. Example: a testator leaves '£60,000 to my three children Alice, Ben, and Clara in equal shares'. If all three survive, each gets £20,000. If Ben dies before the testator (without issue, and without a substitution clause), his share lapses — it does not pass to his children. Alice and Clara each receive £30,000. This is a per capita outcome because the survivors divide the whole pot equally. CONTRAST WITH PER STIRPES: per stirpes (by branches) produces a different result. If Ben predeceases and the gift was expressed per stirpes, Ben's one-third share would pass to his children (who step into his branch). Alice and Clara still take one-third each; Ben's two children split the remaining third between them. WHICH IS THE DEFAULT: in England and Wales, class gifts in a will are construed per capita unless the will expressly states per stirpes or a substitution clause is included. The default position is that the class consists of those who actually survive the testator, and they share equally. INTESTACY: the Administration of Estates Act 1925 distributes on a per stirpes basis — children of a deceased child take the share their parent would have taken. This means the default on intestacy is the opposite of the default in a will for class gifts. This asymmetry is a common source of confusion.

Per stirpes means 'by branches' or 'by stocks'. Under a per stirpes distribution, the estate is divided into notional shares based on the original branches of the family tree, and if a beneficiary in one branch has predeceased, their share passes down through their branch to their own issue (children, then grandchildren, etc.). Example: testator leaves estate 'to my children equally per stirpes'. Alice (3 children), Ben (2 children), Clara (no children). If Ben predeceases: Alice takes 1/3; Clara takes 1/3; Ben's two children each take 1/6 (splitting Ben's 1/3 between them). If Clara also predeceases with no issue, her 1/3 lapses entirely back into the residue (or passes on intestacy if no residue clause covers it) because there are no issue to inherit her share per stirpes. HOW PER STIRPES OPERATES IN PRACTICE: (1) identify the original branches (here: Alice, Ben, Clara = three branches); (2) allocate one equal share to each branch; (3) if the branch head is alive, they take it; (4) if the branch head is dead, their share descends to their issue in equal shares, applying the same rule recursively. IN INTESTACY: the Administration of Estates Act 1925 and the Intestate Succession (Interest and Capitalisation) Order 2008 operate on per stirpes principles. Children of a deceased child take their parent's share. This matches what most people expect under intestacy. IN A WILL: per stirpes is not the automatic rule for class gifts. The courts require express language ('equally per stirpes', 'and if any of my children shall predecease me leaving issue, such issue shall take their parent's share equally between them') or a clear statutory basis under Wills Act 1837 s.33 (which only applies to gifts to children and remoter descendants who predecease, in a will executed on or after 1 January 1983).

Section 33 of the Wills Act 1837 (as amended by the Administration of Justice Act 1982) creates an important statutory exception to the general lapse rule for gifts to children and remoter descendants. THE LAPSE RULE: normally, if a beneficiary named in a will predeceases the testator, their gift lapses — it falls back into the residue (or creates a partial intestacy if it is the residue itself). THE SECTION 33 EXCEPTION: where a will contains a gift to a child or remoter descendant (grandchild, great-grandchild, etc.) of the testator, and that beneficiary predeceases the testator leaving issue who survive the testator, the gift does not lapse. Instead it passes to the issue of the predeceased beneficiary in equal shares. This rule applies automatically unless the will shows a contrary intention. EFFECT: this creates a partial per stirpes outcome — not across all beneficiaries, but specifically for gifts to children or remoter descendants of the testator. A gift to a nephew, friend, or unrelated person is not caught by s.33 and still lapses if the recipient predeceases. CONDITIONS FOR S.33: (1) the gift must be to a child or remoter descendant of the testator; (2) that person must predecease the testator; (3) they must leave issue who survive the testator; (4) the will must not express a contrary intention (e.g., an explicit lapse clause, or a substitution to someone else). DRAFTING IMPLICATION: if you want a full per stirpes distribution (including for beneficiaries who are not the testator's children — e.g., siblings, nieces), you must expressly include substitution clauses for each gift. Section 33 does not cover these. RESIDUARY GIFT EXAMPLE: if a residuary gift is made 'to my children in equal shares' and child Ben predeceases leaving two children, s.33 means Ben's share passes to his two children equally — a per stirpes result for that branch.

Where a will is silent, English courts apply well-established rules of construction to determine whether a gift was intended to be per capita or per stirpes. GENERAL RULE FOR CLASS GIFTS: a gift to a 'class' of persons (e.g., 'my children', 'my grandchildren', 'my nieces and nephews') is construed as a gift to all members of that class who are alive at the date of death and take in equal shares — a per capita outcome. THE RULE IN WILD'S CASE (1599): in gifts 'to A and his children', if A has children, the gift is read as going to A and all his children equally at the time of the testator's death. If A has no children, the gift is construed as going to A with remainder to his subsequently-born children. This rule (and its refinements) emphasises the importance of looking at the testator's evident intention at the date of the will. CLASS CLOSING RULES: the courts apply class-closing rules (the rule in Andrews v Partington (1791)) to determine which persons are included in a class at the date the gift vests. Once a class 'closes', later-born members are excluded even if they fall within the words of description. This can produce per capita results among those in the closed class. WHERE SECTION 33 APPLIES: where the gift falls within Wills Act 1837 s.33, the court treats the predeceased child's issue as stepping in per stirpes — but only for that particular branch. WHAT COURTS LOOK FOR: (a) the specific words used ('in equal shares', 'equally between them', 'per stirpes', 'if any of my children predeceases...', 'whether living or not at my death'); (b) the scheme of the will as a whole; (c) the relationship between the testator and the beneficiaries. PROFESSIONAL DRAFTING: a well-drafted will specifies whether distribution is per capita or per stirpes, includes express substitution clauses, and avoids reliance on default rules or statutory interpretation.

Clear drafting removes ambiguity and avoids expensive court proceedings after death. Here is how to express each outcome correctly. FOR PURE PER CAPITA (equal shares, lapsed gifts fall into residue): use language such as: 'I give the residue of my estate to such of my children as survive me and if more than one in equal shares absolutely.' The phrase 'such of my children as survive me' ensures only survivors share; 'in equal shares absolutely' makes it per capita. If a child predeceases, their share simply falls to the other children (or into partial intestacy if none survive). Note: Wills Act 1837 s.33 may still redirect lapsed gifts to the predeceased child's issue if that child left issue — to exclude s.33 you need express words such as 'and without any right of substitution for issue of any predeceased child'. FOR PER STIRPES (predeceased beneficiary's share passes to their issue): use: 'I give the residue of my estate to my children in equal shares, but if any child of mine shall predecease me leaving issue who survive me, such issue shall take by substitution in equal shares the share their parent would have taken had they survived me.' Alternatively, the simple phrase 'per stirpes' is legally effective: 'I give my residue to my children equally per stirpes.' FOR MULTI-GENERATIONAL PER STIRPES: if you want grandchildren to step into a predeceased grandchild's share as well, extend the drafting: '...and if any issue of mine shall predecease me leaving issue who survive me, those surviving issue shall take equally between them the share their parent would have taken.' NAMED INDIVIDUAL GIFTS WITH SUBSTITUTION: for specific gifts to named individuals who are not the testator's children (s.33 does not apply), include: 'I give £20,000 to my nephew David Jones, and if he shall predecease me I give that sum to his children who survive me in equal shares.' WHAT TO AVOID: (1) using 'equally' without specifying per stirpes or survivor-only; (2) omitting substitution clauses for non-child beneficiaries; (3) assuming s.33 covers everyone — it only covers children and remoter descendants of the testator.

Under the intestacy rules in England and Wales (Administration of Estates Act 1925 Part IV), distribution to children and their descendants is strictly per stirpes, not per capita. This is the reverse of the default rule for class gifts in wills. INTESTACY DEFAULT FOR CHILDREN: the estate (after the surviving spouse's statutory legacy and personal chattels) is divided into equal shares for the deceased's children. But if any child of the deceased died before the deceased leaving issue (grandchildren of the deceased), those grandchildren take their parent's share between them. Example: deceased dies with no spouse, three children: Alice (alive), Ben (died before deceased, leaving two children), Clara (alive). Result: Alice takes 1/3; Clara takes 1/3; Ben's two children each take 1/6. This is per stirpes. FURTHER LEVELS OF DESCENT: the same rule applies recursively. If one of Ben's children also predeceased the deceased leaving a child (the deceased's great-grandchild), that great-grandchild steps in to take their parent's share. There is no limit on the number of generations this can cascade through, as long as there are surviving issue at each level. WHY THIS DIFFERS FROM THE WILL DEFAULT: the Law Commission and Parliament designed the intestacy rules to reflect what most people would want — their estate passing through family branches to grandchildren if a child has died. It was not automatically imported into the rules for will drafting because testamentary freedom permits any arrangement. PRACTICAL IMPLICATION: if you die without a will and have a predeceased child with children, your grandchildren receive what their parent would have received. If you have a will but use per capita language and do not include s.33-compatible substitution clauses, your grandchildren may receive nothing if their parent predeceased you. This is a key reason for drafting wills carefully and including explicit substitution clauses.