Throughout my career I’ve only ever used variations since it seems to me a disclaimer doesn’t do anything a variation can’t do. However that does leave me a bit in the dark as to the effect a disclaimer would have.
Let us consider these facts. Testator U leaves a legacy of £100,000 to V, substituting V’s daughter X, with residue of the estate to Y. U has a daughter, Z, who would be solely entitled on an intestacy.
V disclaims the legacy.
Which of X, Y or Z receives the £100,000?
I won’t prejudge the forum’s answers by speculating what mine would be. I am however troubled by the fact that there is a specific statutory rule for intestacies post-1 Feb 2012 (in s.1 Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011) which suggests to me that its effect (i.e. disclaiming party treated as having predeceased) isn’t the general rule in other cases.
s2 of the Act applies to Wills. So V’s disclaimer is ignored and his daughter X is substituted (under s33 WA 1837) as if he were dead (even though he is alive: s2(3)). What is not dealt with is any time limit on the disclaimer. No doubt this has to emerge, or be contrived to do so, by the PRs communicating with V and extracting a formal disclaimer from him. If the Act did not apply a disclaimer by V would prevent X taking and it would fall into residue for Z
If I have read the question correctly, the testator has only 1 child – Z - who would be the sole beneficiary under an intestacy (so U has no surviving spouse).
If correct, then V and Y are not issue of the testator, so s.33 Wills Act 1837 cannot apply.
However, s.33A Wills Act 1837 will apply so that should V disclaim, V is treated as having died immediately before U.
If the legacy includes a gift over to X should V predecease U, then it goes to X. If there is no such “saving” provision, though, the legacy will fail and fall into residue.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I agree with Paul assuming his assumption is correct ie testator only has one child Z (V and Y not being issue of the testator.
S33 is therefore not in point.
However, s 33A is in point and on a disclaimer by V in this case V is assumed to have died immediately before the testator; in which case the legacy falls into residue (subject to any other provision in the will eg a gift over).