Chinese Surrogate Grandchild

Recently there have been reports of a baby born in China to a surrogate mother four years after his parents died in a car crash, the couple, who died in 2013, had frozen several embryos hoping to have a child through IVF.

The lack of precedent for a case of this kind in China required the deceased couple’s parents to undertake a protracted legal battle to be allowed to use the embryos. The future grandparents worked with a surrogacy agency and decided on Laos, where commercial surrogacy was legal.

In order to prove citizenship of the child, born in China – with the surrogate travelling there on a tourist visa; the grandparents had to prove paternity,  to establish that the baby was indeed their grandson and that both parents had been Chinese nationals.

We have discussed previously the legal notion of a child who is En Ventre Sa Mere – in the mother’s womb. Who for the purpose of inheritance, is treated as having been in existence at the time of their father’s death if subsequently born alive.

In most jurisdictions legislation provides that where a married woman, with the consent of her husband, undergoes a fertilisation procedure as a result of which she becomes pregnant, the husband shall, for the purposes of the law of the State, be treated as if he were the father of any child born as a result of that pregnancy.

In Florida a man made a Will providing for his children however no provision was made in the will for posthumous children.

Eighteen months after he died, his wife gave birth to twins conceived via IVF treatment using the husband’s sperm deposited in the sperm bank. His widow applied for Social Security Survivors Benefits based on her husband’s lifetime earnings.

The man died in Florida, where children are not entitled to inherit from a parent if they were conceived after that parent’s death. The Social Security Administration applied state inheritance laws to decide if a person was a “child” under the Social Security Act and therefore ineligible for survivors benefits.

The Widow appealed the Social Security Administration’s decision to the US Court of Appeals for the Third Circuit which reversed the Social Security Administration’s decision.

On appeal the United States Supreme Court affirmed the original decision by imposing a time limit on when a child who’s conceived after the parent’s death must be born in order to inherit, suggesting that state legislators take into account the difficulties of administering an estate if a child born many years after her parent’s death was legally entitled to inherit part of the estate.

California and Iowa children must be conceived and in utero within two years of a parents death, however Delaware has no time limits as long as there is written consent from the deceased parent.

An Australian  woman made an urgent application to the Queensland Supreme Court following her partner’s death seeking an order to have his testes and sperm removed and stored at a fertility clinic.

The Court granted the orders as the sperm had to be removed within 24hours to maintain viability. However to use any of the extracted material a further court order would be required.

The Court commented that in allowing the extraction of the testes and sperm it gave the woman the opportunity to reflect on

‘whether to proceed with the use of any extracted material’, and any further applications made by her ‘will not be rendered futile through loss of viability of the sperm’.

The English Court of Appeal has ordered the Human Fertilisation and Embryo Authority (HFEA) to reconsider an application by a 60-year-old British woman who wants to use her dead daughter’s frozen eggs to give birth to a grandchild to receive fertility treatment in the United States.

The woman’s daughter who died of bowel cancer in 2011 aged 28 wanted to have IVF treatment but became too ill.

HFEA faced an issue that the daughter had consented to treatment for egg removal and storage (including storage after her death) and also to the use of, other than for research purposes, her eggs after her death, she didn’t specifically consent to the proposed treatment.

The Court heard that the daughter was desperate to have children and asked her mother to “carry my babies”, believing she had signed all the necessary forms to authorise her mother to carry her child after her death.

The HFEA, which had great sympathy for the parents of the dead daughter, argued that after much consideration had decided that there wasn’t sufficient evidence of informed consent.

The Court of Appeal reaffirmed the need for informed consent but concluded there was sufficient evidence of the daughter’s true wishes.

The question that needs to be answered is whether artificial reproductive techniques that delay birth and lead to delays and complexity in the administration of a deceased estate, should such children be disentitled for the purposes of intestate succession or family provision where the child was not en ventre sa mere at the death of the intestate.

AI, Bots, the Law but not as we know it

Late last year at a small suburban office in Darwin which looks very much like a suburban law firm a Chat bot the Artificially Intelligent Legal Information Research Assistant (Ailira) started helping clients make a will for $150.

A bot is the conversational interface that uses programmed logic and, in some cases, machine learning to determine how to interact given a specified topic or function, leading to a conversational interaction with a machine – you have probably interacted with a bot on multiple occasions without realising.

Will makers enter answers prompted by Ailira’s questions; Will makers can ask Ailira questions, using this process Ailira assists them to create a simple will or refers them to a lawyer if a more complex document is required. Office staff are on hand to pick up on issues relating to lack of capacity or undue influence. Concerns have been raised regarding the assessment of the capacity of the testator; does a staff member understand the capacity of a person to make a will using a chat bot? Additionally questions might arise if Ailira’s programming has errors and important aspects of the will are not included.

In Australia there is a prohibition on engaging in legal practice by a person who is not a legal practitioner. Concerns have been raised that non lawyers have been using software for drafting wills, like Ailira this software prompts the clients to answer pre-generated questions, which automatically generates the will without the Will maker meeting with a solicitor.

Ailira’s creator, a legal practitioner, believes that the Bot is more like a Will kit you can purchase from a newsagent, therefore it is not engaging in legal practice as it is “legal stationery”.

However this raises questions as to the nature of legal information (Legal Stationary) versus legal advice. In deciding these issues the court assesses the facts of the situation on a case by case basis however as digital technology development continues to broaden, regulators will need to view new delivery systems in the interests of consumer protection; what exactly the consumer thinks they’re getting by using such a service would be an important consideration.”

In Attorney General at the Relation of the Law Society of Western Australia v Quill Wills Ltd & Ors – Quill Wills was a company that produced ‘do-it- yourself’ will kits. They claimed that they were not providing legal advice; however they had a representative assisting clients to select clauses held in a computer program that were then drafted into the Will.

The court held that the defendants were drawing and preparing a document

“relating to or in any manner dealing with or affecting real or personal estate or interest therein or any proceedings at law, civil or criminal or in equity.”

Quill Wills had gone beyond “merely giving abstract information as to legal rules and was assisting in the production of a will appropriate to the individual circumstances of the customer”.

There are now websites that provide legal forms and documents in a variety of areas of Law, from simple templates that customers can access and personalise themselves as well as websites that generate a document specifically for the user. It may be as simple as the user inputting details when prompted and a the legal document being generated containing those details, which is then purchased and download.

If this technology is used by non-lawyers to provide the service directly to the public, this may create concerns about consumer protection. Although Quill Wills was decided before the recent advancements in artificial intelligence technology, such technologies may drive higher premiums for the legal profession as a whole, while non-legal professionals may discover that their actions are barred by legislation and are not covered by their own professional indemnity insurance.

Software, for better or worse, is cheaper and faster. Artificial intelligence (“AI”) software is already doing discovery, due diligence, drafting and precedent management, jobs that used to be performed by legal practitioners and law graduates.

As with the online generation of documents, law firms using AI in their legal work are covered by professional indemnity insurance, which works to protect the legal practitioners and the clients. That same level of protection is unlikely to exist should non-lawyers be permitted to provide similar technology directly to the public.

However most chat bots aren’t artificial intelligence-driven, but rather rules-based processing — so in a support setting, they’re fundamentally following the same rules a human agent would have to follow. What this means is that it may make little difference in execution whether a bot or human is conducting the interaction.

Although it is happening more slowly technology is transforming the legal profession, enabling those who adopt it to provide better and more cost-effective legal services and representation for their clients. Importantly due to regulations that ultimately protect clients, and the professional judgment and expertise of lawyers the legal profession will not be made obsolete by technology.








A Will gives you the right to dispose of assets the way you wish

Beryl Hordern died in 2014. In 2001 she had executed a will completed in her handwriting using a Will kit leaving the whole of her estate to her niece, Ann Richardson. In 2004 after a falling out with her niece, Beryl instructed a solicitor to make a new will that left the whole of her estate to Cynthia Carr.

Beryl’s solicitor queried why she was making such a drastic change Beryl replied that Cynthia had been a good friend to me over a great number of years and was her only real friend. When the solicitor asked about her niece Beryl replied that she didn’t want to leave anything to her niece or nephew saying that Ann had disgraced herself with comments about my sister (her mother) and the nephew doesn’t deserve anything.

Beryl believed that Ann did not need the money and was upset that she had not visited or inquired about her health or wellbeing since their falling out.

Ann told the court that she had a “normal loving relationship” with her mother, who had died in 1972, however she had fallen out with her aunt and that their relationship broke down after Beryl asked her to make inquiries about how she could die by euthanasia.

Ann had contacted the Euthanasia Society and informed Beryl that they had told her  it was “not legal to do it. And that the society does not assist people to die”. Ann said that her aunt had replied: “You knew I wanted it so why did you stop it? What you did was wrong. I can’t believe it.”

Beryl had been unsure exactly how much her estate was worth, but estimated it to be more than $1 million.

Ann lives in Portugal, so instructed her solicitor to seek, on her behalf, a grant of administration of Beryl’s estate with the 2001 will annexed.

Ann believed that the 2004 will was invalid because Beryl lacked testamentary capacity when she signed it. Cynthia sought probate of the 2004 will.

Under the Banks v Goodfellow test, the Will maker must:

  • understand the nature and effect of a will
  • understand the nature and extent of their property
  • comprehend and appreciate who has a reasonable claim on their estate
  • be suffering from no disorder of the mind or insane delusion that would result in a gift that would not have been made under normal circumstances

The Court found that Beryl had acted irrationally and forgetfully in the period of about six months before she executed the 2004 will, as a result Beryl lacked testamentary capacity when she executed the 2004 will granting administration to Anne of the estate under the 2001 Will.

Cynthia appealed that decision in the Court of Appeal, which unanimously ruled that Anne was no longer the beneficiary of the will and that Cynthia was now entitled to the estate.

The Court of Appeal rejected the trial judge’s finding that Beryl was “delusional” in her reasons for changing the will and had erred in finding that her decision had resulted from “an unsoundness of the mind”.

It found that Beryl was well aware of her actions and their repercussions when she made the 2004 will, affirming that “[t]he power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter”.





Martin Luther King Jr; Image Copyright & Intestacy

The Reverend Martin Luther King, Jr. was a Baptist minister, activist, humanitarian, and leader in the African-American Civil Rights Movement. Best known for advocating nonviolent civil disobedience based on his Christian beliefs to promote Civil Rights he was assassinated in Memphis on April 4 1968 at the age of 39. King died without a will.

King’s heirs formed the Estate of Martin Luther King Jr. Inc., a for profit corporation to allow his family to control his estate. Following the death of King’s Wife Coretta Scott King in 2006 and his oldest daughter Yolanda in 2007 relations among the remaining siblings began to deteriorate.

King’s son Dexter currently oversees the estate.  King’s children have brought a number of lawsuits against each other over the handling of the estate, citing the withholding of information, mismanagement and misappropriation of assets

The Estate took action against the Martin Luther King Jr. Center for Nonviolent Social Change a non-profit institution founded by King’s widow over 45 years ago to educate and promote King’s Legacy. Ongoing litigation with the estate has placed a financial burden on the Centre.

Dexter’s sister Bernice, is the head of the King Center that has displayed King’s traveling Bible and Nobel Peace Prize medal. Dexter, wanted to sell the Bible and medal to a private buyer, and claimed that by refusing to surrender the Bible and Nobel medal; Bernice is violating a 1995 agreement amongst the heirs that assigned title and all rights and interests in King’s property to the estate. Bernice disputes the validity of this agreement, arguing the estate has not complied with a 2009 court ruling.

Bernice claims that she inherited the Bible and Medal from her late Mother, and believes that they should never be sold because they are sacred.

Lawyers for both sides told the judge in May 2015 that they were close to an agreement but not quite there, and mediation was ordered following  the request of Bernice’s attorneys.

President Jimmy Carter was working as a mediator in the case.

The Estate has been highly litigious in protecting the physical and intellectual property of the estate. Including Martin Luther King’s name and likeness, recordings of his sermons and other memorabilia including with Estate of Martin Luther King, Jr., Inc. v CBS, Inc. the copyright status of the  “I have a dream”speech.

On the afternoon of August 28, 1963, the Southern Christian Leadership Conference (“SCLC”) held the March on Washington (“March”) to promote the growing civil rights movement. The events of the day were seen and heard by some 200,000 people gathered at the March, and were broadcast live via radio and television to a nationwide audience of millions of viewers. The highlight of the March was a rousing speech that Dr. Martin Luther King, Jr., the SCLC’s founder and president, gave in front of the Lincoln Memorial (“Speech”). The Speech contained the famous utterance; “I have a dream …,” which became symbolic of the civil rights movement.

The Speech was reported in daily newspapers across the country, was broadcast live on radio and television, and was extensively covered on television and radio subsequent to the live broadcast. About a month after the delivery of the Speech, Dr. King took steps to secure federal copyright protection for the Speech under the Copyright Act of 1909, and a certificate of registration of his claim to copyright was issued by the Copyright Office on October 1963

For the next twenty years, Dr. King and the Estate enjoyed copyright protection in the Speech and licensed it for a variety of uses, and renewed the copyright when necessary.

In 1994, a documentary series entitled “The 20th Century with Mike Wallace” devoted a segment to “Martin Luther King, Jr. and The March on Washington” was made by CBS. It contained extensive footage filmed by CBS of the Speech (amounting to about 60% of its total content). CBS, however, did not seek the Estate’s permission to use the Speech in this manner and refused to pay royalties to the Estate.

The speech is not in the public domain but is private property, owned by the King family, and anybody who wants to use it is supposed to pay for that right. For that matter, family members own all of King’s papers and speeches, some of which also operate the licensing operation through which those who want to use them must go.

While some use of the speech or parts of it can be lawful without approval — individual teachers, for example, are not challenged when they use the speech in violation of the copyright — the makers of the 2014 film “Selma” were never given permission to use King’s words or life story because they couldn’t get a license, which had been sold to two companies for a movie about King’s life that Steven Spielberg is supposedly going to make.

On summary judgment, the district court framed the issue as “whether the public delivery of Dr. King’s speech … constituted a general publication of the speech so as to place it in the public domain.” After discussing the relevant case law, the district court held that Dr. King’s “performance coupled with such wide and unlimited reproduction and dissemination as occurred concomitant to Dr. King’s speech during the March on Washington can be seen only as a general publication which thrust the speech into the public domain.” Thus, the district court granted CBS’s motion for summary judgment.

On appeal the Court held that a performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent. This conclusion is not altered by the fact that the Speech was broadcast live to a broad radio and television audience and was the subject of extensive contemporaneous news coverage.

In the Estate of Martin Luther King Jr. Inc. v Howard Nelson Ballou Suing for the possession of historic documents relating to King, including handwritten letters from King, transcripts of his speeches, and his writings concerning the 1950′s civil rights movement

The documents were given to Howard Ballous’ mother Maude when she worked for King she has given evidence that she believes the documents were gifts to her and remained as personal belongings to her family ever since.  Unfortunately it is not known whether Dr. King wanted her to hold onto them as an employee, or keep them as gifts?  As Dr. King never made a Will no one really knows what his intention was.

The King heirs crack down on unauthorized commercial exploitation of Dr. King. In the early 1980’s a company was selling plastics busts of Dr. King. Advertising materials for the bust included substantial excerpts from Dr. King’s speeches, and also implied an affiliation with an official organization run by Coretta Scott King.

However during the second quarter of the Super Bowl, an ad from Ram Trucks featuring the voice of Martin Luther King, Jr. giving one of his final addresses, “The Drum Major Instinct” sermon delivered exactly 50 years ago from that Super Bowl Sunday. Ram Trucks had obtained approval from  the Martin Luther King Jr. estate. Bernice and the King Centre distanced themselves from the ad.

If Dr. King had left a Will it could have stopped many of these expensive lawsuits. Where a Will isn’t made it leads to fights over personal property.  A Will is an easy way to prevent ongoing court disputes.


A Teenagers Cryogenic last wishes


A teenager (known as JS) had been diagnosed with a rare form of cancer in 2015. Unfortunately she was unresponsive to treatment so in 2016, began researching cryonics hoping that her body could be frozen on death and reanimated sometime in the future, if a cure became available. JS lived in the United Kingdom and the closest cryogenic facility was located in the United States.

 “I have been asked to explain why I want this unusual thing done.  I’m only 14 years old and I don’t want to die, but I know I am going to.  I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time.  I don’t want to be buried underground.  I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up.  I want to have this chance.  This is my wish.”

The girl’s parents were divorced; both were entitled to decide how their daughter’s remains were treated, but were on bad terms. The mother supported her daughter’s wish to be cryogenically preserved, however her father was concerned that his daughter might ‘wake up’ in 200 years’ time, alone in the United States. Eventually JS Father changed his mind, on condition that he and members of his family could view her body after death.

The relevance of the deceased’s wishes in determining who should be awarded the right to dispose of their body was discussed by the Court that agreed that as a minor cannot make a valid Will that appointment of an administrator other than in accordance with the hierarchy stated by intestacy rules was necessary or expedient by reason of special circumstances.

the views of a deceased person as to funeral arrangements and the disposal of his or her body must be taken into account … [I]n this type of case a person’s wishes can be regarded as a special circumstance …

JS lived with her mother, had not had any face‐to‐face contact with her father since 2008, and was refusing to see him or give him detailed knowledge of her medical condition. JS refused to allow her father and his family to view her body after death; JS sought a court ordered resolution.

The Court acknowledged the application was novel, and although set against a tragic backdrop of childhood illness and family conflict the application should be decided in accordance with established principle, or with principle correctly established’.

As a person cannot control the disposition of their body after death and there may be a later change of circumstances that would undermine the decision as a matter of policy the court may not wish to encourage similar applications.

In Williams v Williams the Will maker instructed his executors to give his body to his friend so that she could arrange for the cremation of his body, the Will maker’s wife and son buried him in unconsecrated ground in their local cemetery. Using the pretext of moving he body to consecrated ground his friend had the body exhumed and took it to Italy to have it cremated in accordance with Italian law. When the friend asked to be reimbursed for her expenses, the executors refused.

The Court held that ‘It is quite clearly the law of this country that there can be no property in the dead body of a human being’ It follows that a person cannot leave binding instructions regarding the disposal of their body. While it also follows that an executor does not own the body they are obliged to dispose of, they nonetheless have the right to possess the body until it is properly buried.

All parties were represented before the court; the court wished to provide a resolution at the earliest opportunity as it would be difficult to reassemble effectively after JS’s death; would prevent undignified scenes later; that clarity will help third parties to know how they should act; that the arrangements for JS after death will be particularly complex if she is to be preserved; that JS does not want to be seen after death by her father or his family and the possibility that this might happen causes her present distress; and that consideration of JS’s welfare during life, with her dependence on her mother who is herself under considerable stress.

The Court believed that as there was no likelihood of a change of circumstances and all interested parties were before the court, found that the power exists and that, taking account of all the considerations it should be exercised in this case.

The judge noted that the high costs of freezing the body in perpetuity were around ten times the cost of an average funeral and this cost were being met by the girl’s maternal grandparents; the hospital trust where JS was receiving palliative care was willing to grant a specialist, stand‐by cryonics team access to prepare the body within minutes or hours of death.

The Court accepted that cryonics was not regulated by the Human Tissue Act 2004; however what JS was proposing [did] not seem to be illegal as long as the various legal requirements for doing so were met her remains could be shipped elsewhere.

The Court ‘fully under[stood] the father’s misgivings’ around cryopreservation. However, as the father’s role in his daughter’s life had been ‘extremely limited in recent years’, while his request to see JS after her death would ‘only cause her distress in life’ the mother should be allowed to make arrangements for her daughter’s body to be preserved; preventing the father from applying for a grant of administration in respect of his daughter’s estate; making or attempting to make arrangements for the disposal of JS’s body; and interfering with arrangements made by the mother


Digital Assets & Succession – NSWLRC investigates


Governments can be quite slow in providing the regulations regarding new technologies. In most cases although you own a photograph posted online it is the service provider who owns the access and sets the rules as to who may access their service and how it may be done.

Interestingly whilst we all die – our online presence can exist indefinitely

New South Wales Law Reform Commission will investigate whether new laws are needed to provide certainty as to who can access data after death. It will be the first Australian jurisdiction to do so.

In announcing this investigation the Attorney General highlighted that little thought is given to what happens to our digital assets once we’ve gone or lose the capacity to make decisions about them.

As we have discussed before Wills are governed by state legislation and digital assets are global so any change in succession law will vastly broaden its scope.

Google allows you to use a setting called Inactive Account Manager which allows you to decide what happens to your data and at what time your account is to be treated as inactive – no one ever really dies they just stop using their Google account.

Facebook gives you options for what you want to happen to your account when you die — you can select an ‘inheritor’ (a sort of digital executor) for your Facebook profile, to accept new friend requests, update the profile and cover photo, and write memorial messages.

A Canadian families struggled to obtain their dead Husband and Fathers account details from Apple. The Couple owned an iPad and an Apple computer. When the Husband died his wife knew the iPad’s login code, but didn’t know the Apple ID password

We have posted before about the need to protect your online or digital assets; not just your social media accounts, but your email address(es), cloud, and online financial details; and any hardware (laptop, desktop, hard drives) protected by passwords.

Just as it is prudent (and I would suggest necessary) to have a valid and up to date Will – you should have a digital inventory setting out which details all of your relevant usernames, passwords and secret questions, to enable simple access to your personal and financial information.

In the event that you are incapacitated (this is why a power of attorney is important) your appointed Attorney can control and deal with your digital assets.

Until governments provide clear guidelines that executors are able to log into accounts in order to access the digital assets of a Will maker it might be wise to include a clause in your Will giving that power to your executor – and then writing down your passwords and storing them separately in a safe place.




Disclaiming & Intestacy

Jean Sharp died intestate in September 2011. She had three children, two of whom Adrian Roozen and Vanessa James survived her. If you die intestate your family or friends would have to apply to the Supreme Court for letters of Administration. The procedure is similar to that for obtaining a grant of probate.

A grant of Letters of Administration allows the administrator(s) to manage and distribute the deceased’s assets. In many cases organisations will not release or transfer the assets of the estate unless Letters of Administration have been obtained.

If the Administrator does not obtain Letters of Administration they do not have the legal authority to deal with assets of the estate and could be held personally liable for intermeddling with the estate assets if a Will is found later, even if the Administrator acted honestly.

Vanessa’s solicitor Jemal Zagami was been granted letters of administration of Jean’s intestate estate.

In June 2012, Vanessa instructed a solicitor, to apply for a grant of letters of administration. The Solicitor wrote to Adrian asking if he would consent to being made in favour of Vanessa, or if Adrian wished to be appointed as co-administrator. It was the first of a series of letters, to none of which Adrian replied.

On 17 January 2014, Vanessa’s solicitors wrote advising Adrian that he was one of the nominated beneficiaries of an investment account and asked him to contact them ‘ to enable the claims administrator to pay out the benefit’.

On 17 March, the solicitors sent a letter by registered mail, advising Adrian of his status under intestacy and the usual occurrence that where only one of the beneficiaries is making an application for letters of administration it is common for the remaining beneficiary or beneficiaries to give their consent to that application.

On 15 January 2015, the solicitors wrote to Adrian advising him that the grant of letters of administration had been made and that the estate held $175,326.90. He was advised that he was one of two people entitled to share in the distribution of the estate and that the administrator had approved an interim distribution of $75,000 to each. He was asked to contact the solicitors ‘so that we can confirm payment to you of your share of the interim distribution’.

On 25 January 2015, the solicitors advised Adrian that they were holding the interim distribution in the trust account pending contact from him to claim the funds.

On 15 June 2016, the solicitors again contacted the Adrian advising him that, ‘if you do not wish to claim the funds you may authorise us to, as an alternative, pay the funds to your sister [Vanessa]’.

On 24 August 2016, the solicitors sent a further letter advising that in due course the funds could be lodged as unclaimed money with the Department of Treasury.

On 16 November 2016 the solicitors telephoned Adrian, who said after the situation was explained to him ‘I do not want anything to do with the legals in Perth’.

The Solicitor explained that $90,000 from his mothers estate was being held on his behalf. Adrian replied ‘I don’t want anything to do with it’ and ‘you can hold me to that’.

On 1 May 2017 the solicitors again wrote to Adrian confirming that that he did not wish to claim his share of his mother’s intestate estate. However as he had not signed the authority to authorise payment of your share of the estate to your sister we are seeking further directions from the Supreme Court

  • that you have disclaimed your interest in your mother’s estate,
  • and for a direction that, in the circumstances, the administrator is justified in paying your share of your mother’s estate to your sister

The Court found that an effective disclaimer must constitute an absolute rejection of the gift. It must evince a final and non-negotiable refusal to accept the property, which the donor proffers. It must be ‘simple’: it must not purport to do anything other than disclaim … A disclaimer is effective in and of itself. Oral communication of a disclaimer is sufficient:

  • The oral disclaimer by Adrian is effective.
  • He had been repeatedly advised by letter about what was happening with his mother’s estate.
  • was told the nature of the gift.
  • His rejection was expressed to be absolute, effective immediately, and unconditional. He said that he wanted nothing to do with it.