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informal codicil assignment of an interest disclaimer renunciation wills estates planning lawyer queensland

What is the difference between an informal codicil, assignment of an interest and a renunciation/disclaimer?

You may recall my recent blog post about documenting your intentions correctlyIn that blog, I gave a brief overview of the recent Queensland Supreme Court decision of Gamer v Whip [2012] QSC 209 (30 July 2012). In that case, the Court had to consider whether a document signed by a beneficiary was an informal codicil, a renunciation of a beneficial interest in another person’s will or an assignment of an interest in an Estate. The Court ultimately decided that the document was an assignment of an interest, but only after much discussion surrounding the wording of the document. I have discussed the three issues considered by the Court further below:

The Issues to be Considered

Was the document an “informal codicil”?

An informal codicil is, for example, informal writings found after death (such as a note of items dated and signed by the testator). These type of documents are not recommended as they are usually found not to be legally binding.  For a document to be legally binding, it must comply with the execution requirements contained in the Succession Act. However the law also allows the Court to dispense with these requirements, where the document purports to state the testamentary intentions of a deceased person.

In this case, the Court considered whether the document showed the testamentary intentions of Ms Page.  The Court found that, despite the use of the word “bequeath”, Ms Page’s intention from the document and by her sending it to the executor, was to give her share of Ms Atkinson’s estate to Ms Christiansen and Ms Jensen rather than herself.

Was the document a “disclaimer” or “renunciation”?

The Court conceded that the use of the word “relinquish” may suggest, at first glance, that the document is a disclaimer however was not satisfied that the whole document constituted a disclaimer. The Court was also not persuaded that the document was a renunciation based on Ms Page’s intentions for the share to go the other named beneficiaries.

Was the document an “assignment”?

The Court considered whether Ms Page had intended to assign her beneficial entitlement on the basis that she had done everything necessary to effect such a transaction (by putting it in writing, having it witnessed by a JP and giving express notice to the executor).

Seek Legal Advice

The matter is an important reminder to seek proper independent legal advice when contesting or disputing a Will. It also shows the need to consult an experienced estate planning solicitor when you want to amend your will.

If you require assistance with making a new Will, or updating an existing Will, or if you are a beneficiary or executor of an estate, it is important to obtain experienced advice. Please do not hesitate to contact me if needed.

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Chloe Kopilovic

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Chloe Kopilovic

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