Rejecting a Bequest: Jensen v Mlynarik

In February 2024, the Supreme Court of Queensland handed down a decision in the wills and estates matter of Jensen v Mlynarik. The decision summarized and clarified the case law surrounding rejecting a bequest, which is also known as disclaiming a gift or bequest. This page outlines the facts of that case and the court’s findings.

Facts of Jensen v Mlynarik

Jensen was the executor of his mother’s will. The deceased passed away in 2019, leaving her entire estate in equal shares to her three sons, Christopher Jensen (the applicant), Anthony Mlynarik and Julius Mlynarik (the respondent).

The respondent, who lived in the United States, had been estranged from his mother since 1982. The deceased had tried to contact the respondent several times to inform him of her illness but had been unsuccessful. Following her death, the respondent was informed of the bequest and its value by letter and email at his last known address in the US. No response was received.

The respondent was subsequently personally served with a letter and a copy of the will. The letter provided instructions for how to accept or reject the gift and stated that if the respondent did not respond he would be taken to have disclaimed the gift. It also stated that if no response was received, an application would be made to the Supreme Court of Queensland, for orders that the bequest to the respondent had been disclaimed and that the estate be divided between the other two beneficiaries.

The respondent did not respond.

Procedural steps

The applicant applied to the Supreme Court for an order that the gift to the respondent had been rejected and that the estate be distributed between the other two sons. The application came on for hearing in December 2023 and was adjourned so that service could be affected on the respondent. The application, setting out the details of the orders being sought, was personally served on the respondent with the adjournment date of 17 January 2024. The respondent did not respond.

Supreme Court’s comments on rejecting a bequest

On 7 January 2024, the court considered the principles relating to disclaimers. It noted that there is a presumption that a beneficiary accepts a gift until or unless they disclaim the gift. However, a disclaimer does not have to be made in a particular form.

A gift may be disclaimed:

• by deed
• by other writing
• by word of mouth
• by conduct

Essentially, a gift can be disclaimed by any effective communication of the disclaimer.

The three requirements for a disclaimer to be effective are that:

1. it is timely and occurs before the gift has been accepted
2. it is an absolute rejection of the gift
3. it is communicated to the donor or their agent.

Previous case law has made clear that a person cannot be compelled to accept a gift and that a bequest can be rejected by a clear written or spoken rejection, or by conduct. However, simply failing to respond to correspondence may not be adequate. This depends on the circumstances.

Decision

In this case, the respondent had been clearly informed of the gift, its amount, and the fact that it could be accepted with no conditions attached. He had been informed of the court application and that his failure to respond would be relied upon as evidence that he had disclaimed the gift. In these circumstances, his inaction could only be interpreted as a disclaimer of the gift.

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