One of the testatrix’s children was thought to be profligate, and had failed to maintain his own son. Acting under an enduring power of attorney, the testatrix’s attorneys made a substantial gift in establishing an educational trust for that son’s son. On her death, the other children argued that the share to be taken by the son should be reducd by the amount of the gift.
Held: Though the gift was made without the son’s knowledged or consent, it had the appearance of being made out of the son’s share and in order to protect the grandchild, and it could be set off against the son’s portion of the residuary estate. Where the intention could be understood to anticipate a share of the portion which the child would have received under the will, that portion was to be adeemed to the extent of the gift. ‘As ademption of a gift by will by way of a later inter vivos gift is a working out of the intention of the donor there would seem . . to be no need for the donee either to know of the prospective gift by will or to be party to or to know of the inter vivos gift.’
Lindsay J
Gazette 21-Apr-1999, Times 02-Apr-1999, Gazette 28-Apr-1999
Enduring Powers of Attorney Act 1985 3(4)
Citing:
Cited – Ex Parte Pye 1811
A person acting in loco parentis is ‘in the situation of the person described as the lawful father of the child’ . .
Cited – Ravenscroft v Jones 1863
A father by his will bequeathed andpound;700 to his then unmarried daughter. Later two inter vivos gifts were made; one, of andpound; 100, was plainly not a portion. The other, of andpound;400, was not given to the daughter but to her husband. The . .
Cited – Re C (A Patient) ChD 1991
It may be likely that more than one kind of provision may be described as what the donor of the power of attorney ‘might be expected to provide’. ‘I observe that the statute, recognising the difficulty of arriving at any certainty in these matters, . .
Cited – Watson and Watson 1864
A gift in a will is not to be adeemed by small lifetime gifts – they are not generally ‘portions’ of the inheritance. A gift may be a portion where it is from parent to child: ‘The rule applies not only to parent and child …’ . .
Cited – Pankhurst v Howell 1870
If both a gift by will to a donee and a later gift inter vivos by the testator to the same donee are a ‘pure bounty’, then the latter gift will not be taken to be a substitute, wholly or in part, for the former and the donee will be able to take . .
Cited – In Re Pollock CA 7-Mar-1885
There exists a special consideration sufficient to deny a gift in a will the character of ‘pure bounty’ is where the gift by will has a particular purpose identified in the will itself. The language may show that the gift is intended to meet a . .
Cited – Re Ashton ChD 1897
Stirling J said: ‘Prima facie the duty of making a provision for a child falls on the father, but may fall on or be assumed by some other person. I do not say that in no case and under no circumstances can the duty fall on or be assumed by the . .
Cited – In Re Eardley 1920
The court considered whether a gift might adeem a gift in a will by ‘by a father or a person in loco parentis’ but ‘the matter must be regarded from a wider point of view’. The rule against double portions is, in effect, no more than one way of . .
Cited – Re Ware 1926
No presumption as to any double portion arose in the case of dispositions made in favour of a child by a mother unless she had placed herself in loco parentis to them. In this case there was no evidence of such. . .
Cited – In re Vaux CA 1939
The term ‘portion’ has a ‘qualitative significance’ as well as purely quantitative significance. As to the doctrine of ademption: (Sir Wilfrid Greene MR) ‘The rule against double portions rests upon two hypotheses; first of all, that under the will . .
Cited – In re George’s Will Trusts ChD 1949
If the basic ingredients of a portion are present, then the question of whether or not a gift by will is in fact a portion depends to a large extent upon the donor’s intentions. The testator, by his inter vivos gift of a portion, ‘as it were . .
Cited – In re R (Enduring Powers of Attorney) ChD 1990
The claimant had worked for the deceased for many years. The deceased gave her nephew an enduring power of attorney which was in due course registered. The nephew dismissed the claimant. The claimant said he had worked for many years at a very low . .
Cited – In re D (J) ChD 1982
The patient, a widow had five children. After she became a mental inpatient the court was asked to draft a statutory will.
Held: The court emphasised the need to provide full details of the estate assets and family background. An order that a . .
Cited – Pym v Lockyer 1840
It can be sufficient for a gift to be adeemed as a portion where the donor is a parent: ‘in the case of a parent, a legacy to a child is presumed to be intended to be a portion . .’ The court queried the likelihood of an intention in a grandfather . .
Cited – Kirk v Eddowes 1844
The court discussed cases of ademption in a context where the two gifts were by instruments, to the effect that: ‘… The law raises a presumption that the second instrument was an ademption of the gift by the instrument of earlier date …’ Though . .
Cited – Montefiore v Guedalla 1859
Referring to the doctrine of ademption: (Turner LJ) ‘… the court will not impute to a parent the intention twice to discharge the same obligation of providing for his child – a rule founded, as it seems to me, on very sufficient reasons; for there . .
Cited – Chapman v Salt 1709
A gift in a will to a married woman was adeemed by a later gift by the testatrix of a note for the same sum to her husband. It had been objected that the note was to one and the legacy to another but evidence was received that the note was intended . .
Cited – Shudal v Jekyll 1742
Whether ademption takes place is settled by identifying the testator’s intention. Despite the need to rely upon documents, oral evidence has been ‘constantly admitted in all these cases’. . .
Cited – McLure v Evans 1861
The court must look to the testator’s intentions to decide whether there has been an ademption of a gift. . .
Cited – In Re Shields 1912
Warrington J said: ‘By ademption is meant 1 think in this context a transaction to which the donee as well as the donor is a party.’ Since the testator’s intention had not been communicated to the legatee in his lifetime there was no ademption. . .
Cited – Lord Chichester v Coventry HL 1867
Though the doctrines of ademption and of satisfaction of gifts are related, it is more difficult to establish satisfaction. Slight differences between the two gifts might be overlooked, but where there is real difference between the two gifts by way . .
Cited – In re Furness 1901
A legacy may be adeemed as a portion ‘when a parent by will gives a legacy to a child . .’ It is not enough to deny ademption to show only that the limitations of the portion under the will are different from those in the later inter vivos gift. . .
Cited – Earl of Durham v Wharton HL 1836
WL, brother of JL, gave property to JL charged with a legacy of andpound;5,000 to JL’s daughter, Susan, then unmarried. JL by his will later gave her andpound;10,000 on trust for life with remainder to her children and provided that the . .
Cited – Re Kershaw’s Trusts 1868
In the particular circumstances a provision made for the benefit of the husband was for the benefit of the wife. . .
Cited – In Re Pilkington’s Will Trusts; Pilkington v Inland Revenue Commissioners HL 8-Oct-1962
The trustees proposed establishing a new trust in respect of the share of an estate to which an infant beneficiary had a contingent entitlement. A portion of the trust fund would be allocated to the new trust.
Held: This was a lawful exercise . .
Cited – Lowther v Bentinck 1874
An exercise can be recognised as being for the benefit of a woman when an advance is made to set up her husband in business. . .
Cited – Cooper v MacDonald 1873
A testator by will gave a share in his residuary estate to his then unmarred daughter and later, under a marriage settlement to which he was party, gave two gifts, namely andpound;1,000 to the prospective husband for his own use and benefit and . .
Cited – Hoskins v Hoskins 1706
The rule against double portions applied so that a larger gift by will would be totally adeemed by a later and smaller inter vivos gift. . .
Cited – Rosewell v Bennet 1744
Where the rule against double portions is held to apply, the effect of the later gift inter vivos, does not cause a revocation of the will, but rather brings about a position in which, to the extent of that later gift, there has been an acceleration . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 24 January 2022; Ref: scu.82240