Partner Philip D'Arcy, head of our Dispute Resolution team, highlights the "rule against double portions" and the importance of having proof of intention for lifetime gifts.
"My father left me and my brother £200,000 each in his Will. However, six months before he died he gave my brother the sum of £100,000 to help him buy a new house. My brother thinks that he is still entitled to receive the £200,000 from my father’s estate. This hardly seems fair, especially on our sister who is in difficult circumstances and will get what is left over after the gifts to us."
The key question here is what did your father intend, when he gave the money to your brother. If this was intended to be an entirely separate gift, then your brother is right and he will be entitled to receive the full legacy left to him in the Will. However, the onus will be on your brother to prove that this was your father’s intention at the time he made the lifetime gift. This is because of the so called “rule against double portions”.
This is a presumption of the law that a person would not intend to give a gift twice. So where there are two gifts to the same person, provided both gifts can be described as a “portion” then the law assumes that the first gift was in effect part payment of the legacy. This rule raises a presumption only which can be overturned by evidence. If, however there is a lack of evidence then the presumption will apply and this will cause a failure or partial failure of the gift under the Will. In other words the lifetime gift is treated as an acceleration of the gift made in the Will.
For the presumption to apply it is important to establish that the lifetime gift and the gift under the Will are both in the nature of a “portion”. The advance must be a significant gift to be a “portion” and gifts of small sums or payments of income will not raise this presumption.
In general the rule only applies where the donor is the parent or in loco parentis to the person receiving the gift and the other gift must have been given after the date of the Will.
Your brother would have to show that your father intended the additional £100,000 to be a separate gift to him. If he cannot prove that then the rule will apply and his legacy would be reduced accordingly.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
