The style committee made minor changes of organization and language which have been incorporated into the draft. There are several problems that still exist which I will discuss in section order. In effect, the draft creates a lapse statute for disclaimed interests, passing them to a disclaimant's descendants. The advantage of this provision over the traditional language is clearest when the disclaimed interest is a present interest. The language of the draft succinctly expresses that result and eliminates the complex provision necessary to prevent the disclaimer from resulting in a recalculation of the size of shares determined by representation.
Matters are more complicated when the disclaimer is of a future interest.
Father is survived by Mother and by Son and Daughter. Son decides that he wants to make a tax qualified disclaimer of his share of the remainder and he does so within nine months of Father's death. This is a disclaimer of a future interest. Mother then dies and GC1 will take the remainder and Daughter the other half. In essence, Son's disclaimer transforms the gift to descendants into a class gift to children.