Unfortunately many people go through life assuming a certain level of inheritance will be coming their way only to discover that, by some surprise, the money or valuable items have disappeared. Or, perhaps a valuable asset forming the estate (such as a property) has already been given away to another person. The common explanation given in this situation is that the deceased gave a gift of that particular item, money or property during their lifetime.

It is true to say that when people reach a certain stage of their lives, or are perhaps facing a terminal illness, that they do start to consider what they want to do with their assets and personal belongings. Gifts can certainly be made during that person’s lifetime which are valid and cannot be challenged.  However, it is equally true to say that there are situations where such gifts need to be investigated because the circumstances surrounding the gift has aroused suspicion.

The most common challenge to a lifetime gift is to say that a person lacked capacity to make such a gift. The law states that a person lacks capacity if they are not able to make a decision as a result of an impairment or disturbance of the mind or brain.  It goes on to explain that a person is not able to make a decision if they cannot understand the information relevant to the decision, to retain that information, weight that information as part of the decision making process, or to communicate the decision that they have made.

The bigger the gift, the greater degree of understanding is required by the person making a gift. A gift of a pair of socks, for example, is unlikely to raise the suspicions of the court. However, a gift of property (which for argument’s sake forms the majority of their estate) is likely to raise suspicions and the person making the gift will need to have a degree of understanding equivalent to making a will.

If you are an executor of an estate and you have been put on notice that a lifetime gift should be investigated you must do so. If you fail to carry out that investigation then you could be failing in your duties as an executor and you could be at personal risk.

If you are an executor facing such a situation, or if you are the recipient of a gift you need to defend, or if you feel you have been disinherited as a result of a gift, please contact GA Solicitors for professional legal advice.

Call the wills, inheritance and trust disputes team on 01752 203500 or email me via anna.wonnacott@GAsolicitors.com.

anna wonnacott

Anna Wonnacott, solicitor

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