Probate: establishing the testator’s intention

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The rule against double portions is intended to give effect to the presumed intention of parents. It applies where a testator leaves a child a portion by will and then makes a lifetime gift of a portion to that child. The court presumes that a parent would not intend to benefit one child twice over at the expense of the others. The lifetime gift is therefore regarded as a payment on account of the legacy with the result that the legacy adeems to the extent of the payment. It is surprising how frequently the rule gives rise to problems.

The leading modern case is Re Cameron (Deceased) [1999] Ch 386 where Lindsay J said at paragraph 50: ‘Despite the long use of the term "portion" in the law, the word, as Jarman on Wills, 8th ed (1951), vol 2, p1138 states, "is not a term of art. But it seems to be something which is given by the parent to establish the child in life or to make what is called provision for him".’ There is no portion and no possibility of the rule applying if there is no such intention, either because:

  • the disposition is intended to be ‘pure bounty’, ‘spontaneous bounty’ or ‘mere gifts’, or
  • the disposition has a particular purpose, for example, being intended to meet a particular moral obligation.

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If there are double portions, it is necessary to establish the testator’s intention at the time of making the lifetime gift. The donor’s intention does not need to have been expressed; it may be ‘irresistibly drawn from all the circumstances of the case’ (Re Eardley’s Will [1920] 1 Ch 397, p405).

Cameron established that:

  • the rule applies to gifts made by mothers as well as fathers;
  • the rule applies where gifts are made by an attorney on behalf of a person who has lost capacity;
  • the gift does not have to be directly to the child of the donor; it can be paid to someone else on behalf of the child so long as it benefits the child (in Cameron money was used to pay the school fees of a grandchild of the donor).

In Kloosman v Aylen and Frost [2013] EWHC 435 Ch the deceased made a will under which he left his residuary estate one-third to his daughter, Linda, one-third to his daughter, Susan, and the other third partly to his estranged son, Andrew, and partly to Andrew’s two children. Shortly after making the will, the deceased sold his house for just over £350,000 and paid £100,000 each to Linda and Susan from the proceeds of the sale of his home. The issue was whether the lifetime gifts should be treated as portions intended to reduce their share under the will.

The deceased had been diagnosed with cancer. Initially, Linda took care of him, managed his household and financial affairs, and supplemented his state pension while he remained in his home. When this arrangement became impossible, he went to live with Susan and her husband, who made some modifications to their home in order to accommodate him.

Vivien Rose QC sitting as a deputy judge found that it was clear that the gifts were not intended to be a part-payment. The intention was that the gifts would, in part, repay Linda and Susan for the sums of money that they had already spent taking care of their father and in part would help finance the inevitable future costs of the deceased’s care and housing. Accordingly, the lifetime gifts did not have the character of portions and the presumption against double portions did not arise.

Very much the same situation arose in the earlier case of Casimir v Alexander [2001] WTLR 939 where a father gave his elderly daughter a house. While such a substantial gift was capable of being a portion, there was evidence that the father regarded his daughter as having ‘earned’ the gift through her long years of caring for him and his wife. The practical implications of the rule are obvious. If involved in the making of a substantial gift to one child it is helpful to prepare a clear statement of whether the gift is intended to be instead of or in addition to a gift by will.

If involved in the administration of an estate, be on the alert for lifetime gifts made by the deceased to one child and consider the intended effect. See, for example, Re Clapham [2005] EWHC 3387 (Ch) where the executrix, Marilyn, had been given £20,000 by her father to make a payment as part of a divorce settlement. After the gift and without Marilyn’s knowledge, her sister persuaded their father to write a statement to the effect that the £20,000 was to be deducted from Marilyn’s share of residue under his will. The court held that the gift was substantial enough to amount to a portion and, despite the fact that Marilyn was unaware of the statement, she would have to account for the gift.

Undue influence

Commentators writing about undue influence in relation to wills normally start with a warning that it is a difficult allegation to sustain as (unlike the position in relation to lifetime gifts) there is no presumption of undue influence and evidence is hard to obtain as the testator is dead. Successful cases have been few but we have recently had two.

In Schomberg v Taylor [2013] All ER (D) 74 (Jan) significant factors were held to be the deceased’s fragile mental and physical state, coupled with evidence that the would-be beneficiary had subjected her to such persistent, unwanted pressure that she requested a carer not to put through any calls from him.

In Schrader v Schrader [2013] EWHC 466 (Ch) significant factors were: the vulnerability of the elderly testatrix; her dependency on the beneficiary who had moved in to look after her and was described as having a ‘forceful physical presence’ personality; the failure to use the family firm of solicitors to prepare the will; the reason given to the new will-writer for the change in the will was inaccurate and likely to have come from the would-be beneficiary; the would-be beneficiary’s view that he had hitherto been unfairly treated, which Mann J suggested meant that he would be inclined to ‘try to even things up’; plus his attempts to distance himself from knowledge of the content of the will, which Mann J did not accept.

Lesley King, College of Law

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