The court was asked whether a gift was a ‘portion’ made in order to establish a child in life or make substantial provision for him.
Held: The presumption against double portions arises because it is assumed that a parent only intends to fulfil his or her moral obligation to give a portion to each of his or her children on a single occasion.
There remains no presumption against a mother’s provision for a child as an advancement against an interest in the will, and both parents should nowadays be taken to be in loco parentis unless the contrary is proved. A ‘portion’ for this purpose is loosely defined as ‘a gift intended to set up a child in life or to make substantial provision for him or her’. A gift may still be regarded as a ‘portion’ for the purposes of the presumption when it is part of the residue of an estate even though by the time of the testator’s death the child in question does not need the money to establish him or herself in life.
Thus where a parent leaves a substantial share of his estate in his will to his children and then gives a large inter vivos gift to one of those children, and where both those gifts have the character of a portion, it is assumed, subject to evidence establishing the contrary, that the gift is supposed to be a substitute for the bequest. Where the presumption prevails, the doctrine of ademption applies on the distribution of the estate so that the inter vivos gift is treated as counting towards the donee’s legacy or share of the estate.
Lindsay J
[1999] Ch 386, [1999] 2 All ER 924
England and Wales
Cited by:
Applied – Kloosman v Aylen and Others ChD 8-Mar-2013
The deceased had before his death sold his principle property and made substantial gifts to beneficiaries under his existing will. The parties disputed whether the gifts should be brought into the estate to set off against the gifts made in the . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 20 January 2022; Ref: scu.471870
