Failure of gifts—disclaimer and acceptance
Failure of gifts—disclaimer and acceptance

The following Wills & Probate guidance note provides comprehensive and up to date legal information covering:

  • Failure of gifts—disclaimer and acceptance
  • Freedom to disclaim
  • Limits on disclaimer
  • Effect of disclaimer
  • Intestacy
  • Taxation
  • Acceptance

Freedom to disclaim

A beneficiary is free to disclaim

The law will not force a beneficiary to take a testamentary gift against their Will. A beneficiary is free to refuse a gift if they wish to do so. Abbot CJ said in Townson v Tickell:

'The law certainly is not so absurd as to force a man to take an estate against his Will. Prima facie, every estate, whether given by Will or otherwise, is supposed to be beneficial to the party to whom it is so given. Of that, however, he is the best judge, and if it turn out that the party to whom the gift is made does not consider it beneficial, the law will certainly, by some mode or other, allow him to renounce or refuse the gift.'

The refusal of a gift prior to acceptance is known as a disclaimer.

A beneficiary may disclaim the gift:

  1. in writing

  2. by deed

  3. by conduct

Retracting a disclaimer

A disclaimer by a person sui juris is generally final so that disclaimer by deed binds the person making it like any other deed.

It has been held, however, that a disclaimer made other than by deed on which no one has altered their position may be withdrawn. Romer J in Re Cranstoun's Will Trusts said:

'What, then, is the position of a person who

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