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The Committee which acted for the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Disclaimer Acts was as follows:

TOM MARTIN DAVIS, 3000 One Shell Plaza, Houston, Texas 77002, Chairman

JOE C. BARRETT, P.O. Box 1245 Jonesboro, Arkansas 72401

CLARKE A. GRAVEL, 109 S. Winooski Ave., Burlington, Vermont 05401

JAMES R. MERRITT, University of Louisville, School of Law, Louisville,

Kentucky 40208

ROBERT K. RUSHING, University of North Dakota, School of Law, Grand Forks,

North Dakota 58201

EUGENE F. SCOLES, University of Oregon, School of Law, Eugene, Oregon 97403

MILLARD H. RUUD, University of Texas, School of Law, Austin, Texas 78705,

Chairman, Division B, Ex Officio

EUGENE A. BURDICK, P.O. Box 757, Williston, North Dakota 58801, President,

Ex Officio

AUSTIN FLEMING, The Northern Trust Company, 50 S. LaSalle St., Chicago,

Illinois 60675

Copies of all Uniform and Model Acts and other printed matter issued by the Conference may be obtained from

There are many instances in which, either because of failure to plan effectively or because of unforeseen change of circumstances, transfers at death or gifts impose unexpected expense or hardship upon the recipients. The hardship is particularly acute when the assets are limited.

More efficient utilization of limited resources by the family and other estate planning objectives, which for one reason or another cannot be attained before death, can sometimes be accomplished after death by recourse to the common law right of renunciation, or "disclaimer" - a right which is recognized in virtually every state as holding that a gift under a will cannot be forced upon the legatee if he chooses not to accept it. However, even though the right to disclaim is well established, the common law principles leave much to be desired in the way of completeness and certainty.

Historically, only gifts under a will, i.e., testate successions, could be renounced; for reasons related to feudalism an heir was not permitted to reject his intestate share.

The right to make partial disclaimers has, under common law, depended on whether the gift is severable. If the will gives Blackacre and Whiteacre to A, he can accept Blackacre and renounce Whiteacre, but if the will gives him only Blackacre, he cannot accept half and reject the other half. If the will gives B a $1,000 legacy, he may not, it seems, accept $500 and reject the balance.

While the basic right has been recognized, the procedure for accomplishing a disclaimer, the time limits for doing so, the disposition of the disclaimed property, and the effect of the disclaimer on the rights of others are often unsettled. Legislation is needed to strip away historical limitations and provide clear procedures.

In some states codifiers have been unwilling to include in a probate code statutes relating to deeds and contractual arrangements such as trusts and insurance. For this reason, companion uniform acts have been proposed, one dealing with transfers at death and the other with inter-vivos transfers. A third act, being an integration of the separate acts, was developed for use in states where the codification system is able to accommodate a single law dealing with both types of transfers and where a single statute is preferred.

The uniform acts are generally similar to legislation developed by the Section on Real Property, Probate and Trust Law of the American Bar Association in 1968 and published in the Summer of 1968 JOURNAL of that Section. The A.B.A. proposed legislation was in turn based upon § 58 of the Model Probate Code (1948) which extended the right of disclaimer to intestate as well as testate succession and permitted partial as well as full disclaimers, and on § 15b of the Illinois Probate Act (1961) which applied the right of disclaimer to future interests and to interests under the exercise of a power of appointment. This latter was dictated by the frequency with which modern-day wills or trust agreements leave property on a life estate (legal or equitable) to a widow, with remainder to the decedent's children. If a child should wish to disclaim his share, the common law has been unclear on when he must renounce and by what method. See Estate of Page, 113 NJ Super. 582, 274 A2d 614 (1970). Although many states have legislation reflecting those concerns, the statutes are varied in the coverage and procedures employed, resulting in much confusion and uncertainty.

The disposition of disclaimed property has been one of the more difficult problems presented in legislation on disclaimers. The approach taken in the Acts is to analogize disclaimer to lapse and dispose of the renounced interest as if the disclaimant had predeceased the testator in the case of a disclaimer of a present interest and as if the disclaimant had predeceased the termination of the preceding interest in the case of a disclaimer of a future interest.

As respects the time for making disclaimer, the common law imposed only a requirement of reasonableness. The Conference concluded that a specific period had merit and suggests 9 months. The longer the time allowed, the greater the risk of conduct inconsistent with rejection of the gift and indicative of implied acceptance; the shorter the time allowed, the greater the risk of not having full information for intelligent action. See Broadhag v. U.S., 319 F. Supp. 747 (S.D. W.Va. 1970).

The Acts codify the doctrine of "relation back", which has the effect of preventing a succession from becoming operative in favor of the disclaimant. They also declare that the relation back shall be "for all purposes" which would include creditors and taxing authorities, and it has been so held under similar statutes. Estate of Hansen, 109 Ill. App.2d 283, 248 N.E.2d 709 (1969).

The Acts specifically state that a limitation in the nature of a spendthrift provision or similar restriction will not affect the right to disclaim.

The Tax Reform Act of 1976 introduced into the Internal Revenue Code the concept of a "qualified disclaimer" by the addition of Section 2518, and, for transfers creating an interest in a disclaimant made after 1976, the requirements of that Section must be met in order for a disclaimed interest to be treated as never having been transferred to the disclaimant for Federal estate, gift and generation-skipping tax purposes. As to the manner of making disclaimer, the Acts are consistent with the new Federal requirements. As to the time for making disclaimer, the Acts incorporate the time requirements of Section 2518 only for disclaimers which are subject to that Section and which specifically state that they are intended to qualify thereunder; the preexisting (and generally more liberal) time requirements have been retained for disclaimers not subject to that Section or not intended to qualify thereunder.

SECTION 1. [Right to Disclaim Succession.] A person, or the representative of a deceased, incapacitated, or protected person, who is an heir, next of kin, devisee, legatee, person succeeding to a disclaimed interest, beneficiary under a testamentary instrument, or appointee under a power of appointment exercised by a testamentary instrument, may disclaim in whole or in part the right of succession to any property or interest therein, including a future interest, by delivering a written disclaimer under this Act. A disclaimer may be of a fractional share or of any limited interest or estate. The instrument shall (1) describe the property or interest disclaimed, (2) declare the disclaimer and extent thereof, and (3) be signed by the disclaimant.

Who May Disclaim: At common law it was settled that the taker of property under a will had the right to accept or reject a legacy or devise (per Abbott, C.J. in Townson v. Tickell, 3 B & Ald 3, 1 36, 106 Eng. Rep 575, 576). The same rule prevails in the United States (Peter v. Peter, 343 Ill. 493, 175 N.E. 846 (1931), 75 ALR 890). It is said that non one can make another an owner of an estate against his consent by devising it to him. See, for example, People v. Flanagin, 331 Ill. 203, 162 NE 848, (1928) 60 ALR 305:

"The law is clear that a legatee or devisee is under no obligation to accept a testamentary gift . . . and he may renounce the gift, by which act the estate will descend to the heir or pass in some other direction under the will . . ."

Under the rule permitting the disclaimer of testate successions, the disclaimed interest related back to the date of the testator's death so that the interest did not vest in the grantee but remained in the original owner as if the will had never been executed (People v. Flanagin, supra).

Unlike the devisee or legatee, an heir had no common law power to prevent passage of title to himself by disclaimer. "An heir at law is the only person in whom the law of England vests property, whether he will or not," declares Williams on Real Property, and adds, "No disclaimer that he may make will have any effect, though, of course, he may as soon as he pleases dispose of the property by ordinary conveyance." (Williams on Law of Real Property 75 [2d Am. Ed. 1857]. See also 6 Page on Wills [Bowe-Parker Revision] Section 49.1.)

The difference between testate and intestate successions in respect to the right to disclaim, has produced a number of illogical and undesirable consequences. An heir who sought to reject his inheritance was subjected to the Federal gift tax on the theory that since he could not prevent the passage of title to himself, any act done to rid himself of the interest necessarily involved a transfer subject to gift tax liability [Hardenberg v. Com'r, 198 F.2d 63 (8th Cir. 1952) cert. denied, 344 U.S. 863 (1952), aff'g 17 T.C. 166 (1951); Maxwell v. Com'r, 17 T.C. 1589 (1952). See Lauritzen, Only God Can Make an Heir, 48 NWL Rev. 568; Annotation 170 ALR 435]. On the other hand, a legatee or devisee who rejected a legacy or devise under a will incurred no such tax consequences [Brown v. Routzahn, 63 F.2d 914 (6th Cir. 1933), cert. denied, 290 U.S. 641 (1933)].

Section 1 places an heir on the same basis as a devisee or legatee and provides that he and others upon whom successions may devolve, have the full right to disclaim in whole or in part the passage of property to them, with the same legal consequences applying in all such cases.

Successive disclaimers are permitted by the express inclusion of "person succeeding to a disclaimed interest" among those who may disclaim.

Beneficiary: The term beneficiary is used in a broad sense to include any person entitled, but for his disclaimer, to possess or enjoy an equitable or legal interest, present or future, in the property or interest, including a power to consume, appoint, or apply it for any purpose or to enforce the transfer in any respect. A donee of a power of appointment is embraced within the term and may disclaim the power in whole or in part. The right to disclaim a power of appointment is in addition to any right to release or reduce the power under any other statute or common law.

Section 1 extends the right to disclaim to the representative of an incapacitated or protected person. This accords with the general rule that the probate or surrogate court in the exercise of its traditional jurisdiction over the person and estate of a minor or incompetent may authorize or direct the guardian, conservator or committee to exercise the right on behalf of his ward when it is in the ward's interest to do so. Davis v. Mather, 309 Ill. 284, 141 N.E. 209 (1923).

Section 1 also extends the right to disclaim to the representative of a decedent. The right to disclaim was often viewed as personal to the one entitled to exercise it and as dying with him, but the prevailing view now is that the representative of a deceased person may exercise his right to disclaim, and the Act adopts that position. [Rolin v. C.I.R., 588 F.2d 368 (2d Cir. 1978); Estate of Hoenig, 66 T.C. 471 (1976).] Whether a disclaimer by the representative of a decedent must be approved by the probate court is not specifically dealt with in the Act. Cf. Uniform Probate Code, Section 3-711.

Although Section 2 extends the time limitation for a minor to make a qualified disclaimer until 9 months after his reaching age 21, the Act generally makes no provision for an extension of time to disclaim or other relief from a strict observance of the statutory requirements for disclaimer, and the time limitations for expressing the right of disclaimer apply to persons deceased or under disability as well as to others.

What May be Disclaimed: Section 1 specifies that the "succession" to any property, real or personal or interest therein, may be disclaimed, and it is immaterial whether it derives by way of will, intestacy, exercise of a power of appointment or disclaimer. It would include the right to renounce any survivorship interest in the community in a community property state. Cf, U.S. v. Mitchell, 403 U.S. 190 (1971), rev'g 430 F.2d 1 (5th Cir. 1970), aff'g 51 T.C. 641 (1969).

Future Interests: Section 1 contemplates the disclaimer of future interests by reference to "beneficiary under a testamentary instrument" and "appointee under a power of appointment." The time for making such a disclaimer is dealt with in Section 2.

Partial Disclaimer: The status of partial disclaimers has been uncertain in many states. The result has often turned on whether the gift is "severable" or constitutes a "single, aggregate" gift [Oglesby v. Springfield Marine Bank, 395 Ill. 37, 69 N.E.2d 269 (1946); Brown v. Routzahn, supra]. Section 1 makes it clear that a partial, as well as a total, disclaimer is permitted and that a partial disclaimer includes not only a disclaimer of a fractional share but also a disclaimer of any limited interest or estate. A part of the incidents of ownership of property may be disclaimed. For example, if a fee is devised, the devisee may disclaim all but a life estate.

Discretionary administrative and investment powers under a trust have been held to constitute a "severable" interest and subject to partial disclaimer. Estate of Harry C. Jaecker, 58 T.C. 166 (1972). A partial disclaimer of a power of appointment includes the possibility of reducing or limiting the power as to amount, objects or conditions.

Method of Disclaiming: In many states no satisfactory case law has existed as to the form and manner of making disclaimers of devises or legacies under wills. See Annotation 93 ALR2d 8 - What Constitutes or Establishes Beneficiary's Acceptance of Renunciation of Bequest or Devise. Because certainty of titles and the expeditious administration of estates makes definiteness desirable in this area, Section 1 requires a disclaimer to (i) describe the property or interest disclaimed; (ii) declare the disclaimer and the extent thereof; and (iii) be signed by the disclaimant.

SECTION 2. [Time of Disclaimer - Delivery.]

(a) An instrument disclaiming a present interest shall be delivered not later than [9] months after the death of the decedent or the donee of the power. An instrument disclaiming a future interest shall be delivered not later than [9] months after the event that determines that the taker of the property or interest has become finally ascertained and his interest indefeasibly vested. However, in either case, as to a transfer creating an interest in the disclaimant made after December 31, 1976, and subject to tax under chapter 11, 12, or 13 of the Internal Revenue Code of 1954, as amended, a disclaimer intended as a qualified disclaimer thereunder must specifically so state and must be delivered not later than 9 months after the later of the date the transfer is made or the day on which the person disclaiming attains age 21.

(b) The disclaimer shall be delivered in person or mailed by registered or certified mail to any personal representative, or other fiduciary, of the decedent or the donee of the power or to the holder of the legal title to which the interest relates. A copy of the disclaimer may be filed in the [probate] court of the county in which proceedings have been commenced for the administration of the estate of the deceased owner or deceased donee of the power or, if they have not been commenced, in which they could be commenced. If real property or an interest therein is disclaimed, a copy of the disclaimer may be recorded in the office of the [Recorder of Deeds] of the county in which the real estate is situated.⁽¹⁾

Time for Making Disclaimer: At common law, no specific time evolved within which disclaimer had to be made. The only requirement was that it be within a "reasonable" time (In re Wilson's Estate, 298 N.Y. 393, 83 N.E.2d 852 (1949); Ewing v. Rountree, 228 F.Supp. 137 (D.C. Tenn. 1964)). As a result, divergent holdings were reached by the courts (Brown v. Routzahn, 63 F.2d 914 (6th Cir.), cert. denied, 290 U.S. 641 (1933)). Section 2 fixes a definite time for making a disclaimer but also fixes an alternative time for making a qualified disclaimer under Federal tax law. In the case of a present interest passing by reason of the death of a decedent, the time period prescribed follows the pattern of the Federal estate tax law which fixes the time for filing estate tax returns in terms of the decedent's death. The time allowed should overlast the time for filing claims and contesting the will and enable the executor or administrator to know with certainty who the takers of the estate will be. On the other hand, it should not be so long as to work against an early determination of the acceptance or rejection of succession to an estate or to increase the risk of inadvertent acceptance of the benefits of the property, creating an estoppel. In the case of future interests the disclaimer period should run from the time the takers of the interest are finally ascertained and their interests indefeasibly fixed, both in quantity and in quality (Seifner v. Weller, 171 S.W.2d 617 (Mo. 1943), except where the intention to effect a qualified disclaimer under Federal tax law requires otherwise). For the consequence of selecting too short a period, see Broadhag v. U.S., 319 F. Supp 747 (S.D. W.Va. 1970), involving a 2-month period fixed by West Virginia law.

In the case of a future interest it should be noted that the person need not wait until the occurrence of the determinative event before filing a disclaimer but may do so at any time after the death of the decedent or donee, so long as it is made "not later than" the prescribed period.

Federal Tax Implications: Disclaimers have significance under the Federal gift, estate and generation-skipping tax laws. Section 2511(a) of the Internal Revenue Code imposes a gift tax upon the transfer of property by gift whether the transfer is in trust or otherwise and whether the gift is direct or indirect. The Treasury regulations under that Section state that where local law gives the beneficiary, heir or next-of-kin an unqualified right to refuse to accept ownership of property transferred from a decedent, whether by will or by intestacy, a refusal to accept ownership does not constitute the making of a gift if the refusal is made within a "reasonable time" after knowledge of the existence of the transfer.

A "reasonable time" for gift tax purposes is not defined in the Code or regulations for a transfer creating an interest in a disclaimant before 1977. For those transfers it has been held that the courts will look to the law of the states in determining the question, (Brown v. Routzahn, 63 F.2d 914 (6th Cir.) cert. denied, 290 U.S. 641 (1933)), not conclusively, but as relevant and having probative value (Keinath v. C.I.R., 480 F.2d 57 (8th Cir. 1973), rev'g 58 T.C. 352 (1972)), and that an unequivocal disclaimer made within 6 months of the determinative event is made within a "reasonable time." It has been held that as regards future interests, the "reasonable time" period runs from the termination of the preceding estate or interest, and not from the time the transfer was made (Keinath v. C.I.R., supra; contra, Jewett v. C.I.R., 70 T.C. 430 (1978), Halbach v. C.I.R., 71 T.C. 141 (1978)).

However, for transfers creating an interest in a disclaimant after 1976, a disclaimer must constitute a "qualified disclaimer" under Section 2518 of the Internal Revenue Code to be effective for Federal gift, estate and generation-skipping tax purposes. That Section requires a disclaimer to be delivered not later than 9 months after "the date on which the transfer creating an interest in such person is made", the transfer being considered made when treated as a transfer for tax purposes. Thus, if T dies in 1980 and his will leaves his estate to A for life, remainder to B if he survives A, a "qualified" disclaimer by B would apparently have to be made within 9 months of the death of T. The Act incorporates the time requirements of Section 2518 only if T dies after 1976 and B intends his disclaimer to be effective for Federal tax purposes. The Act permits a disclaimer by B within 9 months after the death of A to be effective for property law purposes even though it may not be effective for Federal tax purposes.

As to a transfer creating an interest in a disclaimant after 1976, the Act seeks to be no more restrictive than Federal law and thus additionally allows a disclaimer intended as a qualified disclaimer to be made within 9 months after the disclaimant reaches age 21.

Delivery of Disclaimer: Section 2 requires a disclaimer to be delivered in person or by registered or certified mail to the personal representative or other fiduciary of the decedent or donee of the power or to the holder of legal title to the disclaimed property. The delivery requirements of the Act comport with the requirements under Internal Revenue Code Section 2518. A copy of the disclaimer may also be filed in the court where the deceased owner or deceased donee's estate is being, or could be, probated.

If real property or an interest therein is involved, a copy of the disclaimer may also be recorded in the office of the recorder of deeds or other appropriate office in the county in which the real estate is situated. If the Torrens systems is in effect, appropriate provisions should be added to comply with local law.

SECTION 3. [Effect of Disclaimer.] Unless the decedent or donee of the power has provided for another disposition, the property or interest disclaimed devolves (1) as to a present interest, as if the disclaimant had predeceased the decedent or, if the disclaimant is designated to take under a power of appointment exercised by a testamentary instrument, as if the disclaimant had predeceased the donee of the power; and (2) as to a future interest, as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his interest indefeasibly vested. A disclaimer relates back for all purposes to the date of the death of the decedent, or of the donee of the power, or the determinative event, as the case may be.

Devolution of Disclaimed Property: When a beneficiary disclaims his interest under a will, the question arises as to what happens to the rejected interest. In People v. Flanagin, 331 Ill. 203, 162 N.E. 848 (1928), 60 ALR 305, the court, quoting the New York case of Burritt v. Sillman, 13 N.Y. 93 (1855) said that the disclaimed property will "descend to the heir or pass in some other direction under the will." From this, it may be assumed that the court meant that if the decedent left no will, the renounced interest passed according to the rules of descent, but if he left a will, it passed according to its terms.

It has been generally thought that devolution in the case of disclaimer should be the same as in the case of lapse, which is controlled by sections of the probate law. Section 3 of the Act takes that approach. It provides that unless the will of the decedent or the donee of the power has otherwise provided, the disclaimed interest devolves as if the disclaimant had predeceased the decedent or the donee of the power in the case of a disclaimer of a present interest or the event which determines that his interest is vested in the case of a disclaimer of a future interest. In every case the disclaimer relates back to the date of the death of the decedent or of the donee or to the determinative event, as the case may be. The provision that the disclaimer "relates back", codifies the rule that a renunciation of a devise or legacy relates to the date of death of the decedent or donee and prevents the succession from becoming operative in favor of the disclaimant. See In re Wilson's Estate, 298 N.Y. 398, 83 N.E.2d 852 (1949). Also, Bouse, for use of State v. Hull, 168 Md. 1, 176 A. 645 (1935).

Acceleration of Future Interests: If a life estate or other future interest is disclaimed, the problem is raised of whether succeeding interests or estates accelerate in possession or enjoyment or whether the disclaimed interest must be marshalled to await the actual happening of the contingency. Section 3 provides that remainder interests are accelerated, the second clause specifically stating that any future interest which is to take effect in possession or enjoyment after the termination of the estate or interest disclaimed, takes effect as if the disclaimant had predeceased the event which determines that the taker has become finally ascertained and his interest indefeasibly vested. Thus, unless the decedent or donor of the power has otherwise provided, if T leaves his estate in trust to pay the income to his son S for life, remainder to his son's children who survive him, and S disclaims with two children then living, the remainder in the children accelerates; the trust terminates and the children receive possession and enjoyment, even though the son may subsequently have other children or one or more of the living children may die during their father's lifetime. The will or instrument of transfer may be drafted to avoid acceleration if desired.

Effect of Death or Disability of Person Entitled to Disclaim: The effect of death of a person entitled to disclaim, including one under disability, is discussed under Section 1. A guardian or conservator of the estate of an incapacitated or protected person may disclaim for the ward. Additionally Section 2 allows a person to make a qualified disclaimer within 9 months after he reaches age 21. Section 3 makes no other provision for an extension of time or for other relief in case of disability from the observance of the statutory requirements for effective disclaimer. With the one exception of a person's making a qualified disclaimer within 9 months after reaching age 21, the intent is that the period for disclaimer applies to a person under disability as well as to others, and includes a court which purports to act on behalf of one under disability in the absence of fraud, misconduct or other unusual circumstances. Pratt v. Baker, 48 Ill. App.2d 442, 199 N.E.2d 307 (1964).

Devolution of disclaimed Property in Intestacy: Rules of descent in many states follow a uniform stirpital principal of distribution [e.g. Iowa Code Annot. § 633.219; Ill. Rev. Stat. ch. 110½, § 2-1; Minn. Stat. Annot. § 525.16]. In such states if X dies intestate survived by a brother, A, and a niece, the daughter of a predeceased brother, B, and if A, who has two sons, disclaims, the disclaimed share descends entirely to A's two sons and the niece does not participate. In other states, this is not the rule and when all the takers are of equal degree of kinship, a per capita distribution is required [e.g. Mass. Annot. Laws, ch. 190, § 3; Ore. Rev. Stat. ch. 112, § 112.045. See also, Uniform Probate Code, § 2-103]. In these jurisdictions, the assumed death of the disclaimant before the decedent raises the question of which rule governs when the disclaimant is the only heir standing in a different degree of kinship. In Matter of Fienga, 75 Misc.2d 233 (N.Y.), it was held that the manner of distribution is not changed by disclaimer statute and the stirpital principle applicable to different degrees of kinship continues to apply. This is consistent with other situations in which assumed death is not given the same effect as actual death. Thus, under a statute declaring that divorce revokes any bequest to the former spouse and in such case the will takes effect as if the former spouse predeceased the testator it is held that assumed death is not the equivalent of actual death for purposes of satisfying conditions and limitations in the will. Simes & Smith Law of Future Interests, § 776, p. 2 (2d ed. 1956); Fleming, Divorce as the Equivalent of Death in Satisfying Conditions in Wills, 53 Ill. B.J. 232.

Rights of Creditors and Others: As regards creditors, taxing authorities and others, the provision for "relation back" has the legal effect of preventing a succession from becoming operative in favor of the disclaimant. The relation back is "for all purposes", which would include, among others, for the purpose of rights of creditors, taxing authorities and assertion of dower. It is immaterial that the effect is to avoid the imposition of a higher death tax than would be the case if the interest had been accepted: Rolin v. C.I.R., 588 F.2d 368 (2d Cir. 1978), aff'g 68 T.C. 919 (1977); Estate of Aylsworth, 74 Ill. App.2d 375, 219 N.E.2d 779 (1966) [motive for the disclaimer is immaterial]; People v. Flanagin, 331 Ill. 203, 162 N.E. 848 (1928), 60 ALR 305; Cook v. Dove, 32 Ill.2d 109, 203 N.E.29 892 (1965) [upholding for inheritance tax the right of appointees to take by default rather than under the powerholder's exercise of power]; Matter of Wolfe's Estate, 179 N.Y. 599, 72 N.E. 1152 (1904); aff'g 89 App. Div. 349, 83 N.Y. Supp. 949 (1903); Brown v. Routzahn, 63 F.2d 914 (6th Cir.), cert. denied 290 U.S. 641 (1933); In re Stone's Estate, 132 Ia. 136, 109 N.W. 455 (1906); Tax Commission v. Glass, 119 Ohio St. 389, 164 N.E. 425 (1929); U.S. v. McCrackin, 189 F. Supp 632 (S.D. Ohio 1960).

Similarly, numerous cases have held that a devisee or legatee can disclaim a devise or legacy despite the claims of creditors: Hoecker v. United Bank of Boulder, 476 F.2d 838 (CA 10, 1973) aff'g 334 F. Supp. 1080 (D. Colo. 1971) (bankruptcy); U.S. v. McCrackin, supra (Federal income tax liens); Shoonover v. Osborne, 193 Ia. 474, 187 N.W. 20 (1922); Bradford v. Calhoun, 120 Tenn. 53, 109 S.W. 502 (1908); Carter v. Carter, 68 N.J.Eq. 726, 53 A. 160 (1902); Estate of Hansen, 109 Ill. App.2d 283, 248 N.E.2d 709 (1969) (judgment creditor); 37 Mich. L. Rev. 1168; 43 Yale L J 1030; 27 ALR 477; 133 ALR 1428. A creditor is not entitled to notice of the disclaimer (In re Estate of Hansen, 109 Ill.App.2d 283, N.E.2d 709 (1969)).

SECTION 4. [Waiver and Bar.]

(a) The right to disclaim property or an interest therein is barred by (1) an assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor, (2) a written waiver of the right to disclaim, (3) an acceptance of the property or interest or benefit thereunder, or (4) a sale of the property or interest under judicial sale made before the disclaimer is effected.

(b) The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.

(c) The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under him.

Bars to Disclaimer - Waiver - Estoppel: It may be necessary or advisable to sell real estate in a decedent's estate before the expiration of the period permitted for disclaimer. In such case, the possibility of a disclaimer being filed within the period could be a deterrent to sale and delivery of good title. Section 4 expressly authorizes an heir, devisee, legatee or other person entitled to disclaim to indicate in writing his intention to "waive" his right of disclaimer, and thus avoid any delay in the completion of a sale or other disposition of estate assets. The written waiver bars the right of the person subsequently to disclaim the property or interest therein and is binding on persons claiming through or under him.

Similarly, Section 4 provides that various acts of a person entitled to disclaim in regard to property or an interest therein, such as making an assignment, conveyance, encumbrance, pledge or transfer of the property or interest, or a contract therefor, bars the right of the person to disclaim and is binding on all persons claiming through or under him.

Spendthrift Provisions: The existence of a limitation on the interest of an heir, legatee, devisee or other disclaimant in the nature of a spendthrift provision or similar restriction is expressly declared not to affect the right to disclaim. Without this provision, there might be a question as to whether the beneficiary of a spendthrift trust can disclaim under the statute (Griswold, Spendthrift Trust [2d Ed] Section 524, p. 603). If a person who is under no legal disability wishes to refuse a beneficial interest under a trust, he should not be powerless to make an effective disclaimer even though the intended interest once accepted by him would be inalienable. (Scott on Trusts, Section 337.7, p. 2683, 3d Ed.)

When a beneficial interest is accepted by a beneficiary, he cannot thereafter disclaim or release it (Griswold, supra, Section 534, p. 603 note 48). As to what conduct amounts to an acceptance, see In re Wilson's Estate, 298 N.Y. 398, 83 N.E.2d 852 (1949), Perrine v. U.S., 423 F. Supp. 1217 (N.D. Iowa 1976).

Judicial Sale: The section provides that the right to disclaim as barred by a sale of the property or interest under a judicial sale. Judicial sales are ordered in many different types of proceedings, such as foreclosure of mortgage or trust deed, enforcement of lien, partition proceedings and proceedings for the sale of real property of a decedent or ward for certain purposes. Probate laws frequently permit a representative to mortgage or pledge property of the decedent or ward in certain circumstances. Execution sales are made pursuant to a writ to satisfy a money judgment. Section 4 has the effect of providing that the making of a judicial sale for the account of the heir, devisee, or beneficiary bars him from renouncing the property or interest. To be distinguished from a judicial sale is a taking pursuant to eminent domain, which is considered to be a taking of property without the owner's consent and unrelated to his obligations or commitments. The right to disclaim the proceeds of a condemnation action if otherwise timely and in accordance with the Act should not, therefore, be barred under this section.

SECTION 5. [Exclusiveness of Remedy.] This Act does not abridge the right of a person to waive, release, disclaim or renounce property or an interest therein under any other statute.

Section 5 provides that the right to disclaim under the law does not abridge the right of any person to waive, release, disclaim or renounce any property or interest therein under any other statute. The principal statutes to which this provision is pointed are those dealing with spousal renunciations and release of powers.

Being a codification of the common law in regard to the renunciation of the property, the Act is intended to constitute an exclusive remedy for the disclaimer of testamentary successions apart from those provided by other statutes, and supplants the common law right to disclaim.

SECTION 6. [Application.] An interest in property existing on the effective date of this Act as to which, if a present interest, the time for delivering a disclaimer under this Act has not expired, or if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within [9] months after the effective date of this Act.

Section 6 deals with application of the Act to property interests under instruments or in estates in existence on the effective date. If the interest is a present one and the filing time has not expired, the holder is given a full period after enactment within which to disclaim the interest. If the interest is a future one, the holder is given a full period after the interest becomes indefeasibly vested or the takers finally ascertained after enactment in which to disclaim it. If T dies in 1960 trusteeing his estate to W for life, remainder to such of T's sons as are living at W's death and W dies in 1975, the Act permits a son to disclaim his remainder interest after it ripens even though it arises under an instrument predating the effective date of the Act. The application of statute to pre-existing instruments in like situations finds support in cases such as Will of Allis, 6 Wis2d 1, 94 N.W.2d 226 (1959), 69 ALR2d 1128.

SECTION 7. [Uniformity of Application and Construction.] This Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among states enacting it.

Section 7 is a standard provision in all Uniform Acts.

SECTION 8. [Short Title.] This Act may be cited as the Uniform Disclaimer of Transfers by Will, Intestacy, or Appointment Act.

SECTION 9. [Repeal.] The following acts and parts of acts are repealed:

(1)

(2)

(3)

SECTION 10. [Time of Taking Effect.] This Act shall take effect . . . . . . . . . . .

1. If Torrens system is in effect add provisions to comply with local law.