Ben Parr-Ferris, Senior Litigator, Contentious Probate team of Healys, continues his series of articles explaining the different ways in which Wills and Probates are contested.
When a testator dies, it can come to light that property he owned had been given away before he died and so does not form part of his estate. In these cases, the family who would otherwise have inherited the property are often surprised that the property is not available, especially when that property is referred to in the Will.
In most such cases, the gift will have been made some time before there was any suggestion that the testator was going to die. In these cases there are limited ways that the gift can be challenged. There is generally no restriction on the ability to give away ones property. If you choose to do so, you can make gifts of everything you own, but the courts are generally suspicious when someone is said to have given away valuable property for no apparent reason. The test for undue influence in these cases is different from the test that is applied to determine whether a Will should stand.
As with Wills, if there is actual coercion used by the recipient of the gift to persuade the testator to give it, that will be sufficient for the court to say that the gift should be set aside. Where a gift is made during someone’s life (inter vivos in the legal terminology) it is sometimes not necessary to go that far. If you are looking to have a gift set aside, and you can show
- that there is a close relationship of trust and confident between the giver and the recipient and
- that the transaction is one that calls for an explanation
Then the court asks the recipient of the gift to prove that is was a genuine gift and there was no undue influence.
Very often the answers to these two questions are self evident. As it can be quite difficult to prove that there was not any undue influence, the gift may well be set aside if these relatively straightforward points are proved.
Case Study Example
Healys’ Ben Parr-Ferris acted for the successful defendant in the case of Glanville -v- Glanville  EWHC 1271 (Ch). Mr Glanville had a family by his first marriage. After his first wife died, he married the defendant Mrs Glanville and they lived together for some years. Unknown to his wife, Mr Glanville made a Will leaving the property they lived in (but which belonged solely to Mr Glanville) to his family. Unknown to his family, Mr Glanville executed a deed of gift giving that property to himself and Mrs Glanville as joint tenants. When Mr Glanville died the joint tenancy meant that the house went to Mrs Glanville outside of the estate, and so the Will had no effect. The family challenged the deed of gift alleging undue influence by Mrs Glanville. After trial, the judge concluded that there was no actual undue influence (i.e. no evidence of coercion). There was a possibility that Mrs Glanville could have exercised dominance over Mr Glanville that meant there was a close relationship that satisfied the first limb of the test for a presumption of undue influence to arise. The claim failed under the second limb however because the deed of gift did not call for any explanation; it was an entirely natural transaction that could be explained easily in many other ways than by improper pressure from Mrs Glanville.
In some cases property may have been given away not because the giver wanted the recipient to keep the property, but because he wanted the property to be held for someone else. In these cases, there is likely to be a trust and the person who was intended to get the property can bring proceedings to recover it (but the estate can not). It will be necessary to prove the reason for the property being given away if that is the case.
Donatio Mortis Causa
This is the formal legal name for deathbed gifts. In some very rare circumstances a gift that is made in the following circumstances can be valid:
- the giver anticipated his own imminent death at the time
- the gift was conditional on his death
- the gift could be revoked if he did not die
- something was handed over to show that the property was meant to change hands
If the gift is valid it comes into effect when the giver dies, and the property does not form part of the estate even if it is mentioned in the Will.
In most cases however these very strict requirements are not met; the majority of claims to be entitled to keep a deathbed gift are not successful.
If you require any further information on this topic or the services we offer please contact Ben Parr-Ferris on 020 7822 4104 or email firstname.lastname@example.org.