Where a will contains two separate and independent bequests to the same person, the legatee is at liberty to accept one of them and refuse the other, although the former may be beneficial and the latter onerous.
Illustration:
A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is higher than the house can be let for, bequeaths to B the lease and a sum of money. B refuses to accept the lease. He will not by this refusal forfeit the money.
Legal Commentary & Landmark Judgments: Section 123
Section 123 establishes that where a will makes two separate and independent bequests to the same person, the legatee is entitled to accept the beneficial bequest and disclaim the onerous one.
The decisive statutory test is whether the two bequests are truly distinct, independent dispositions, or whether they form parts of a single unified testamentary scheme. If the testator bequeaths profitable shares in Company A in Clause 2, and bequeaths loss-making, debt-ridden shares in Company B in Clause 7, the legatee can legally keep the profitable shares and disclaim the debt-ridden shares under Section 123.
Section 123 is a potent weapon in estate administration. When an estate contains problematic assets (e.g., heavily encumbered real estate or shares in litigious partnerships), litigators should examine whether those assets are bequeathed independently of other lucrative assets. If separate clauses exist, the legatee can execute a deed of disclaimer for the onerous asset under Section 123 while retaining the lucrative property.