What happens if an inheritance is received during the deceased’s lifetime? The rule against double portions
This topic has nothing to do with the writer’s eating habits and all to do with a situation which can occur when members of a family complain that someone has received an inheritance twice over: first when the deceased was still alive, and then again following their death and the distribution of their estate.
Where a parent leaves a legacy to a child in their will, it is assumed that a parent does not intend to provide for a child twice over, and that such a payment, either in full or partially, was not also made during the lifetime of the parent. A payment of money provided before death, and that as an inheritance provided after, are both termed as ‘portions’. These are generally payments to a child (not necessarily a minor) by their parent, someone acting as such (e.g. a foster parent), an attorney of a lasting or enduring power, or a deputy of the Court of Protection. These payments are made with a view to establish that child in life, or to provide substantial provision.
However, it is worth noting that just because there are two payments made of a similar, or even the same, amount before and after death, it does not automatically mean they are considered to have the same characteristics as portions. In some circumstances such payments are not considered as portions and instead can be seen as a spontaneous bounty (Brucie bonus!) or a mere gift. This means one should not be taken into account against the other. If monies and assets have already been distributed and leave insufficient funds to pay a legacy in a will, then that legacy cannot be made: this is called ‘ademption’.
Expert legal advice can be of huge assistance in these circumstances. It is often necessary to look at all the provisions of the will, for example whether there is a clause detailing that lifetime gifts are to be taken into consideration (a ‘hotchpot’ clause). The wording of the will could provide the answer to the problem, or at least set out what should happen in these circumstances.
If you require any assistance with any of these matters please ask to speak to a member of the team by calling 01752 203500, or email matthew.ellis@GAsolicitors.com
All content on this website (inclusive of guides, blogs and imagery) is strictly copyrighted by Gill Akaster LLP, trading as GA Solicitors. It is not to be used by any third party without prior contact and permission. Any requests for content should be sent to katy.mckenna@GAsolicitors.com.