By Mary-Ann de Mestre -
Snapshot
- Judicial advice may be sought to determine whether a beneficiary has disclaimed their testamentary gift, providing clarity and protection for executors.
- A disclaimer can arise formally, in writing, orally or by conduct, provided there is clear evidence of refusal and notice of the gift.
- Including clear disclaimer and gift-over clauses in wills helps prevent disputes, ensures testamentary intentions are carried out and avoids partial intestacy.
The question of what happens when a beneficiary refuses or disclaims a testamentary gift is increasingly relevant in estate practice. The recent ACT Supreme Court decision in In the Estate of Giuseppe Pellegrino (deceased) [2025] ACTSC 421 (‘Estate Pellegrino’) demonstrates how courts can be asked to provide judicial advice on whether a beneficiary has disclaimed their interest and how to administer the estate accordingly. For practitioners, this case underscores both the importance of clear testamentary drafting and the utility of judicial advice applications in managing potentially contentious or uncertain estate matters.
