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:
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.
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. To find out more about when a deed of variation may be used, see our page Can a will be changed after death?
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.
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.
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.