A Double Portion?

Many may not realise that there is a rule against "Double Portions" when dealing with legacies on death. It relates to situations where a parent leaves a portion of estate by their Will but makes a lifetime gift of a portion to that child before their death.

The Court assumes that parents would not want to benefit one child twice to the detriment of the others and will consider the lifetime gift as part payment of/payment on account of the legacy.

But what is a "portion"?

Caselaw says that it is something given by the parent with the intention of establishing the child in life or to make provision for him.

Intention is, as it is in many other areas, the key!

If there was no intention by the parent to establish the child for life or make provision for him then it is not a "portion" that the child is being given - this could be the case where a parent makes a "mere gift" or where a parent makes a payment with the purpose of meeting some moral obligation of the child's.

The rule causes more problems than people might imagine and there have been several cases dealing with this. In all cases where there has been a lifetime gift made and a legacy left, it is important to consider the intention of the parent when the lifetime gift was made, which more often than not has not been expressed in writing and must instead be drawn from the circumstances of the case.

It doesn't matter that any gift was made by an attorney instead of a parent themselves, for example where a parent had lost capacity, and it doesn't matter whether any gift was made to the child directly or to some third party, as long as the child benefitted from it.

Cases where it has been held that lifetime gifts were not "portions" and did not fall under the rule  have included parents gifting some of their children monies to repay the efforts or finances that the child has expended in caring for their parent during their lifetime or through illness.

Ultimeately, to avoid difficulties, parents who are planning to make lifetime gifts to one of their children are best advised to make a clear note of their intentions and to detail whether they intend this gift to be instead of any legacy, as part payment of it or entirely in addition to it. That action may well avoid costly disputes after their death.

Contact Norman Snowball on 01905 731 731 if you need further information on this topic.