Is That A Single Portion Or A Double Portion?

Published date26 July 2021
Subject MatterFamily and Matrimonial, Family Law
Law FirmBoyes Turner
AuthorMs Ally Tow

Whilst there is no legal obligation on any parent to leave their estate to their children in equal shares or indeed to leave it to their children at all if they have reached the age of majority, it is often the case that parents do treat siblings the same and siblings certainly expect to be treated equally. How does this affect the distribution of your estate upon your death if, having made a will treating your children, on an equal basis you then make a gift in favour of one of them in preference to the other during your lifetime or perhaps gifts to all of them but in differing amounts? Undoubtedly, the disappointed sibling(s) is likely to seek to suggest that allowance be made when distributing the estate for gifts already received during the parent's lifetime. Does the sibling(s) that has received a lifetime gift from their parent receive both that gift and an equal share of the estate? This is where the double portions rule is likely to be effective.

What is the "double portions" rule?

There is a presumption under common law that a person would not intend to give a gift twice. So if two gifts are made to the same person, provided both gifts can be described as a "portion" then the law assumes that the first gift was in effect part payment of the legacy. That presumption is, however, rebuttable.

What is a portion?

A portion is defined as a gift intended to set up a child in life or to make substantial provision for him or her. If having left a substantial share of his estate in his will to his children, a parent then gifts a substantial gift during his lifetime to one of those children, if both those gifts have the character of a portion, it is assumed the lifetime gift is a substitute for the bequest in the will.

To be classed as a portion, a gift must comprise three requirements:

  1. The gift must be a gift in lifetime and be of a substantial sum (in its own right and not merely substantial in relation to the estate);
  2. Made by a parent (or a person in loco parentis) to a child;
  3. Made with the object of establishing the child in life or making provision for them.

How to prevent the rule applying?

In an ideal world, to avoid any future litigation a testator would include a clause in his will, a so-called "hotchpotch clause" which can provide protection against the rule applying. A hotchpotch clause provides that any gifts made during a parent's lifetime should not be taken into (or brought back into) account when dividing assets between the children (or...

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