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 the testator has provided a portion and, secondly, that by the gift inter vivos which is said to operate in ademption of that portion either wholly or pro tanto, be has again conferred a portion. The conception is that the testator having in his will given to his children that portion of the estate which he decides to give them, when after making his will he confers upon a child a gift of such a nature as to amount to a portion, then he is not to be presumed to have intended that that child should have both, the gift inter vivos being taken as being on account of the portion given by the will. When the word ‘portion’ is used in reference to the gift inter vivos, it has a qualitative significance, in this sense, that it is not every gift inter vivos that will cause the rule to come into operation. If a testator gives to a child as pure bounty and by way merely of a present a sum of money, that will not have the character to cause the rule to come into operation. Similarly there may be various reasons why the testator should give property to a child. He may wish to free him from some embarrassment, or something of that kind. In cases of that sort upon the facts a gift may be not be a portion at all, in which case, of course, the rule does not apply.’ The ademption is settled by testing the tstator’s intentions at the time of the second gift.
References: [1939] 1 Ch 465
Judges: Sir Wilfrid Greene MR
Jurisdiction: England and Wales
This case is cited by:
- Cited – In Re the Estate of Marjorie Langdon Cameron (Deceased); Peter David Phillips v Donald Cameron and Others ChD 24-Mar-1999
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 . .
(Gazette 21-Apr-99, Times 02-Apr-99, Gazette 28-Apr-99) - Cited – Barraclough v Mell and others ChD 1-Dec-2005
Moneys due under a will had been misdistributed. The correct beneficiary sought repayment. The executor sought to rely upon a trustee exemption clause.
Held: the tustee exemption clause was effective to protect the executor as such. She had . .
(, [2005] EWHC B17 (Ch))
These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194474