I would be grateful for help with what to do in the circumstances of this case in its early stages.
I understand that it is not possible to dispose of a spes successionis. Nevertheless, how does a beneficiary named in a Will where the testator has not died, effectively alienate his interest under the Will, the particular circumstances being that T has lost mental capacity and the stepchildren under his second marriage, (second wife has died) wish to disclaim the benefit that they will take under the Will as it stands, such that it accrues to the children of the first marriage.
We don’t know yet, not having seen the Will, whether the stepchildren have pecuniary legacies and the children receive residue, but we think so, and if correct, we wonder if the way forward is for the stepchildren to purport to disclaim, and in addition (1) covenant with the children to disclaim and (2) irrevocably appoint the children their attorneys for the special purpose of disclaiming in their name if they, the stepchildren, do not comply with their covenant and (3) covenant to indemnify the children, making this a condition, breach of which would entitle the children to liquidated damages equal to the amount of the stepchildren’s benefit under the Will. There is goodwill between children and stepchildren at the moment, but that could change of course and so the children want it made enforceable now, the only alternative appearing to be an application for a statutory Will supported by all children. The testator is assumed not to have sufficient capacity to make a codicil or new Will.
I hope that members of the forum will have met this and be able to assist. If going my way as above, I’d also want to decide whether to separate the disclaimer, made even if not enforceable, and recite it in a separate deed comprising the covenant, power of attorney and indemnity.