Southwick v. Southwick, 2011 UT App 222

In Southwick v. Southwick, 2011 UT App 222, the court of appeals held that the requirements under the applicable Utah disclaimer statute need not be strictly satisfied.  Rather, the court held that substantial compliance with the statute was sufficient to make a valid disclaimer.

Specifically, the statute in effect at the time in question (in 1992) required that the disclaimer (i) describe the disclaimed property, (ii) disclaim the property and describe the extent of the disclaimer, (iii) be signed by the disclaimant, and (iv) state that the disclaimer was properly and timely executed.  The disclaimer in this case satisfied the first three requirements, but not the fourth.

The court cited several Utah Supreme Court opinions in explaining that substantial compliance with a statute is sufficient when the provision in question is designed only to facilitate “the proper, orderly and prompt conduct” of the matter at hand, when the policy rationale behind the statute will be satisfied even if the statutory requirements are only substantially met, and when using a substantial compliance standard will not result in prejudice.  On the other hand, strict compliance is required when substantive rights are affected or when substantial compliance will result in prejudice.

In Southwick, the court appeared to be influenced by the fact that, by the time the court heard the case, the fourth requirement under the statute (i.e. the requirement that had not been met) had been removed from the statute by the legislature.

See §3.8.4 of The Utah Law of Trusts & Estates, an online legal reference treatise available at The Utah Trust & Estate Educational Resource Center for a detailed discussion of disclaimers in Utah. 

Rust Tippett is the author of this blog post.

Copyright 2012 UNLEPI, LLC, a Utah limited liability company.  All Rights Reserved.

This blog post in no way creates an attorney-client relationship between the reader and either Robert S. (Rust) Tippett or Bennett Tueller Johnson & Deere, P.C.  The reader should consult with his or her own estate planning attorney regarding his or her particular circumstances.

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