CG31450 - Death and Personal Representatives: Variation of the devolution of an estate: Deeds of disclaimer:Variations: estate: disclaimers: legal effects: absolute interests

If the interest the person was due to receive was an absolute interest, either in specific assets or in residue, after the disclaimer those assets are added to residue. Residue is then distributed in accordance with the pre-existing terms of the will or intestacy. But if an interest in residue has been disclaimed, residue is divided between the other persons entitled to residue ignoring the bequest to the person who made the disclaimer.

Example

A will provides for

• X to receive an absolute interest in a parcel of land

and

• Y and Z to receive an equal absolute interest in residue. But if either Y or Z is deceased and they have children living at the date of the testator’s death, it provides for their children to receive equal portions of the interest that Y or Z respectively would have received.

Z had two children living at the date of the testator’s death.

If X disclaims the absolute interest in the parcel of land then the land becomes part of residue. As a result each of Y and Z will in due course receive a one half absolute interest in the land providing they do not disclaim their interests under the will.