Disclaiming gifts in Wills: unintended consequences?
So you have gone to the time and effort of executing a Will so that your testamentary wishes will be followed after you are gone. What could go wrong?
In the recent case of White v Williams [2025] EWHC 115 (Ch), the High Court addressed the interpretation of the term "fail" within a Will's substitution clause, which became relevant following a beneficiary's disclaimer.
Elfed Williams passed away in June 2023, leaving a net estate valued at just under £400,000. His Will left his residuary estate to six beneficiaries in equal shares. One of those six beneficiaries was his son, Keith Williams. Keith was estranged from his father and did not wish to receive his share of the estate (albeit there was no formal disclaimer). The Will included a substitution clause to the effect that if any share should "fail" it would pass to the remaining beneficiaries. The issue was whether Keith's intention to disclaim constituted a "failure" under the terms of the Will, or whether a partial intestacy arose.
The law provides that where a person disclaims a gift in a Will, “unless a contrary intention appears by the Will”, that person is to be treated as having died immediately before the testator. Elfed’s Will contained no such contrary intention. The Court therefore ruled that the natural and ordinary meaning of the word “fails” extended to a disclaimer. This meant that the gift to Keith was considered to have failed and his share distributed among the other five residuary beneficiaries in accordance with the provisions of the Will. No partial intestacy arose.
The case demonstrates the importance of a carefully drafted Will. The unforeseen consequence of Elfed's decision to include his estranged son Keith as a beneficiary meant that his estate will no doubt have had to have borne the costs of this High Court application, leaving less for the remaining five residuary beneficiaries.
