Words and Phrases - "surrender and release"

The taxpayer, who had tax debts on his death, made an "informal" disclaimer of his beneficial interest under the estate of his wife five days prior to her death (which was found to be invalid because the common law required that a disclaimer be made after the death of the legator) and, three years after her death, made a formal disclaimer. The formal disclaimer was found to operate as a surrender and release, rather than a disclaimer, because his conduct subsequent to her death was inconsistent with a disclaimer. Accordingly, the purported formal disclaimer acted as a transfer of property by him to the beneficiaries (his and her children).

Létourneau J.A. went on to note that because a disclaimer does not involve the vesting and divesting of property but, rather, operates by way of retroactive avoidance of a devise, s. 160 would not have applied if there had been a valid disclaimer.