The Forfeiture Rule and the Law of Succession ... - Law Commission

power to order that the property be held by the Public Trustee, who should
administer it so as to avoid benefit to the killer.
DISCLAIMER
4.14 The other issue is that of disclaimer. As we have said, this may be relevant both
in intestacy cases and in will cases. The main argument for including disclaimer
cases, advanced by several respondents, is that the issues are the same as in
forfeiture cases and that the same rule of succession should apply whether the
primary beneficiary dies or is unable to take for any other reason. The main
argument against is that disclaimer is a deliberate act, and that any undesirable
consequences of the existing rule can be easily avoided by taking a different
route.
On intestacy
4.15 For convenience, we first discuss the case under an intestacy, where it is the
child of the intestate who proposes to disclaim, and the choice is whether the
grandchildren of the intestate or the collaterals should be next in line to inherit.
The question in this case is whether the existing rule, or for that matter the
proposed replacement rule:
(a) restricts the freedom of the primary beneficiary (the person
disclaiming), or fails to reflect his or her likely intentions;
(b) is unfair to the grandchildren; or
(c) is likely to frustrate the wishes of the deceased.
The primary beneficiary
4.16 One argument against including disclaimer cases in the reform is that the
decision to disclaim can be taken at leisure and after full legal advice. If
disclaimer would lead to undesired results, the primary beneficiary can decide not
to disclaim. This would be as true following our suggested reform as it is now:
whether the result of disclaimer is to benefit issue or collaterals, it is open to the
primary beneficiary to bring about the opposite result by means of a deed of
variation. We conclude that, from the point of view of freedom and flexibility, the
proposals are neutral.
The grandchildren
4.17 In one sense, the present rule is not unfair to the grandchildren, in that they are
not deprived of a vested interest: the result is the same as if the primary
beneficiary had accepted the inheritance and given it to someone else. However,
the rule is counter-intuitive: the disclaiming beneficiary would naturally expect to
benefit the grandchildren, and would be surprised to learn that the effect of the
disclaimer is to cut them out. We therefore consider that the grandchildren should
be second in line after the disclaimer by the child, and that this should be the
default position if the child does not take steps to avoid it.
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