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SUCCESSFULLY CHALLENGING A WILL – CAN A SUBSTANTIAL LIFETIME GIFT DEFEAT A LEGACY??

Yes it can. In law (equitable law that is) there is a rule that a parent would not intend to benefit his or her child twice, by making a substantial gift to the child and following the death of the parent, by leaving the same or an equivalent amount by Will. The Court presumes the parent would not intend to benefit one child twice at the expense of any other children.

This rule is overcome if there is evidence that the gift is intended to be just that, a lifetime gift or where the disposition has a particular purpose: perhaps where the money is needed for educational needs.

In these circumstances then it will not be possible to successfully challenge the Will (on the basis the gift has already been made).

Furthermore, recent cases appear to me to reveal that the courts are loathe to apply the rule with any degree of stringency, in particular where there is evidence the gift may have  been made in return for taking care of the parent. In Kloosman v Aylen and Frost 2013 EWHC 435 Ch, the deceased made a Will leaving one third of his residuary estate to each of his three children (although one, the estranged son was to share his with his children). After making this Will, the deceased sold his house for just over £350,000 and paid £100,000 each to his daughters (but nothing to the estranged son). Each of the daughters had cared for their father but the son had not. The Court found the gifts were not intended to be part payment of the daughters inheritance. The intention was that the gifts would in part repay the daughters for their care of their father.

It was very much the same situation in the earlier case of Casimir v Alexander 2001 WTLR 939 where the parent gave his daughter a house. In this case there was evidence the daughter had been given the house in part payment for her substantial care of her parents.

Whilst then the circumstances provided by the above cases are common place, it is clear that the Courts do not intend to allow the rule to justify disputing or challenging a Will without relevant evidence. The “rule” then is weakly applied. A disgruntled beneficiary disputing or challenging a substantial lifetime gift, may fail to persuade a Court to apply it, particularly in circumstances where the gift can be seen as justifiably made.

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