Disclaimer of interest - Legal Aid


(Ben Leach) #1

We are acting for lay administrators in distributing an intestate estate. One of the beneficiaries is in prison, and has requested that part of his money be paid to another family member, and only a limited amount paid into his prison account. By his own admission this is because he wants to continue to enjoy access to Legal Aid for the purposes of his appeal.

I feel we can and should reasonably refuse to comply with this request. However, would we be compromised in any way if we were to accept a disclaimer of the full amount? I seem to be in a minority amongst colleagues in thinking that we cannot force someone to take a gift against their will (assuming that the personal representative clients agree). I would be interested to hear other views.

Ben Leach
Molesworths Bright Clegg


(Paul Saunders) #2

I take it the beneficiary in prison has separate legal advisers.

I suggest the beneficiary should be informed that if he wishes to disclaim it is an “all or nothing” situation, and that he cannot direct where the inheritance should go if he does disclaim. He should be directed to his own legal advisers to ascertain if it affects his legal aid status. I can see no justification for the estate bearing the cost of identifying that position.

Whilst it is trite law that a beneficiary cannot be forced to accept a gift against their will, you need to be satisfied that it is “their will” and that they are not under a misapprehension as to the effect of their refusal.

Whilst it is arguable that any form of disclaimer is valid, counsel usually advises that a disclaimer is made by deed, to reflect the seriousness of the action and so that the personal representative can be satisfied the disclaiming beneficiary has been advised on the consequences of refusing the gift. A mere letter can be revoked if the original beneficiary changes their mind, especially if they decide they had not understood the consequences of a disclaimer.

Paul Saunders