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Should a child inherit twice?

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The Presumption against Double Portions– Kloosman v Aylen & Others (2013) EWHC 435

What is a Portion?

The term ‘portion’ was defined in the case of Re Cameron (1999) CH386, as, “something which is given to the parent to establish the child in life or to make what is called provision for him.”.

The Facts of Kloosman v Aylen & Others

The testator, Mr Richard Frost died on 4 March 2008 at the age of 84.

He had three children, Linda Aylen, Susan Frost and Andrew Frost.

He made a will on 26 September 2007 leaving his estate on trust as to one-third for Linda Aylen, one-third for Susan Frost and one-third for Andrew Frost and his children in the following split, one-sixth for Andrew Frost and one-sixth for his two children, Robert Frost and Tracey Frost.

Before making his will, Mr Frost owned a property and shortly afterwards had sold the property for almost £350,000.

On 2 November 2007 Mr Frost made two cash gifts of £100,000 to each of his daughters.

The court had to determine whether or not the inter vivos gifts of £100,000 were portions.

The court looked at the character of Mr Frost and the circumstances surrounding the gifts.

The court placed considerable weight upon Mr Frost’s ignorance of the value of his estate at the time of making the will and concluded that Mr Frost could not comprehend that his property would sell for £350,000.

As to the timing of the gifts, the court placed considerable prominence on the fact that Mr Frost had received considerable financial and moral support from his daughters.

On the particular facts of this case, the gifts were found not to have been intended as portions and it was not therefore necessary for the court to look at the second step of applying the presumption.

Practical advice

  • It is important that a testator understands the extent of their estate and what their assets are worth when drafting their will.
  • It is important to check whether any lifetime gifts have been or will be made and to ensure that the testator’s intention as to whether or not these gifts were made instead of or as well as the gift in the will is clearly set out.
  • Whenever you are asked to handle a substantial lifetime gift it should act as a reminder to ask your client if they have a will and if that gift is intended as an on account gift. The same questions should be asked in relation to any grandchildren or to any third party linked to the child of the testator.
  • Care should also be taken when administering an estate to check whether or not any significant lifetime gifts were made, and whether or not they were intended to be a portion