What is a disclaimer?
A disclaimer of a Will is a legally binding refusal of a gift under the Will by a beneficiary.
A person does not have to accept a gift that they are to receive under the terms of a Will.
This might happen if:
they feel that they do not need any provision made for them;
there are other people who need it more;
they believe that the deceased had intended to make changes to their Will but did not get round to it (for example, the legacy was put into the Will when the beneficiary was appointed Guardian of the testator’s children, but by the time of death the children no longer need a Guardian);
the testator and the beneficiary have become estranged since the Will was made; or
other circumstances have changed since the Will was made.
Similarly, if a deceased person died intestate, then a person who would receive their estate or a share of it under the rules of intestacy does not have to accept the estate or share.
How do you disclaim a gift?
If a person chooses not to accept an inheritance, they are said to be disclaiming it.
However, the disclaimer would have to be made after the death; if it was made before the testator’s death, it is not effective.
If a gift is left to more than one person as joint tenants, a disclaimer can only be made by all of them acting together.
A person disclaiming a gift cannot decide who receives the gift instead. If they want the gift to go to a specific alternative person, this should be done by a deed of variation.
When a gift is disclaimed, the estate is distributed as if the Will had not included the gift at all. A disclaimer cannot be revoked if any other person has acted on the basis of it: once a gift is disclaimed, the beneficiary cannot change their mind, except in very specific circumstances.
Once a gift has been accepted, it cannot later be disclaimed.
A disclaimer should be formal and made in writing, and the best way of doing this is by a deed of disclaimer. It will simply say, in legal language, that the beneficiary disclaims the gift – i.e. has decided not to accept it. A disclaimer made by deed cannot be revoked.
As a deed, it will need to be signed by two competent witnesses. Good practice is that the witnesses should not be people mentioned in the Will, or members of the family.
Partial disclaimers, and disclaimer of more than one gift
A single gift cannot be partially disclaimed, but if the same beneficiary receives more than one gift, they can disclaim one and accept the other.
For example:
a beneficiary who is to inherit two cars in the deceased’s Will can decide that they only want one; or
someone who is left £25,000 and a car can decide that they do not want the car.
However:
a person who is due to receive £100,000 cannot disclaim £50,000.
As with any other, a gift that is disclaimed by a beneficiary goes back into the residuary estate. If the intention is to give up part of a gift so that some other specific person can receive it, then this should be done by a variation.