Before you apply the IHTA provisions dealing with disclaimer,
you need to check that what you are concerned with really is a
disclaimer. Experience shows that the effect of a disclaimer is
frequently misunderstood. For example, an interest under a will may
be disclaimed without regard to the consequences of the partial
intestacy thereby produced. Alternatively, the person disclaiming
may purport to go on to redirect all or part of the property in
which their original interest has been extinguished; such an
attempt is totally inconsistent with the legal concept of
disclaimer.
Considerable care is therefore necessary in the consideration
of any document embodying a disclaimer that purports to be other
than a simple comprehensive relinquishment of the beneficial
interest of the person making it.
Where this is the case and the disclaimer meets the other
conditions in IHTA84/S142,
and you are authorised to do so, you may accept
that the disclaimer falls within IHTA84/S142 following the
appropriate instruction at
IHTM35151.
Where a purported written disclaimer, executed before 1
August 2002, relates to an interest in a deceased person’s
estate, you may be able to avoid uncertainties about its
effectiveness as a disclaimer by treating it as a variation (
IHTM35011) and requiring an election (
IHTM35051) within the six month period.
Subject to that possibility, you should refer any case of
doubt or difficulty to TG .
However, as any instrument of variation executed on or after
1 August 2002 must already contain a statement of intent it will
not be possible to treat a disclaimer as a variation after this
date.
