Section 2 – Disclaimer or forfeiture of a gift under a will
15.This section makes analogous provision to that made by section 1 in relation to intestate succession for disclaimers or forfeitures of gifts under wills. It inserts a new section after section 33 of the Wills Act 1837 ("the 1837 Act"), and makes one consequential amendment to that section.
16.Subsection (2) inserts a new section 33A into the 1837 Act. It corresponds to the new section 46A set out in section 1(2).
17.Subsection (1) of the new section 33A specifies that the new section applies where a person either disclaims a gift under a will or is precluded from taking it by the forfeiture rule.
18.Subsection (2) of the new section 33A provides that in both these situations, the will is to be interpreted as if the person disclaiming or forfeiting had died immediately before the testator. The effect of this is that the person next entitled to the property will be able to inherit. This general rule does however give way to a contrary intention in the will. This is consistent with the provisions of section 33 of the 1837 Act, which also give way to a contrary intention in the will.
19.Subsection (3) of the new section 33A provides that, as in the analogous intestacy situation, the new rule gives way to any order the court may make under section 2 of the Forfeiture Act 1982 to give relief to the killer from the effect of the forfeiture rule.
20.Subsection (3) makes a consequential amendment to section 33(3) of the 1837 Act and corresponds to subsection (3) of section 1. Section 33(3) excludes a grandchild or remoter descendant of the testator whose parent is still alive at the testator’s death from inheriting. Subsection (3) avoids inconsistency with the rule introduced by section 33A by making section 33(3) subject to the new section 33A.
