Kloosman v Aylen & Ors

The presumption against double portions applies where a parent makes a substantial lifetime gift to a child and also leaves that child a substantial testamentary share, and both gifts have the character of portions. The presumption treats the lifetime gift as a substitute for, or advance of, the testamentary provision unless contrary intention is shown. A gift is not a portion merely because it is substantial or later represents a significant part of the estate. Where the gift was made to reimburse expenditure and assist with the donor’s future care, the presumption does not arise.

The executor sought directions concerning two lifetime gifts of £100,000 made by Richard Frost to his daughters shortly after the sale of his house. The daughters were also entitled to substantial shares of the residue under his will. The issue was whether the gifts should be brought into account as portions under the presumption against double portions and the doctrine of ademption.

1. The application concerned the distribution of the deceased’s estate under the will. The court had to determine whether the two lifetime gifts should count towards the daughters’ testamentary shares.
2. The governing principles were the presumption against double portions and the doctrine of ademption. As explained in In re Cameron deed [1999] Ch 386; [1999] 2 All ER 924, a portion is broadly a gift intended to set up a child in life or make substantial provision for the child. Where both the lifetime gift and testamentary gift are portions, the lifetime gift is presumed to be a substitute for the testamentary provision, subject to evidence of contrary intention.
3. The presumption did not arise merely because the gifts were large or amounted to approximately one third of the eventual estate. Their character and purpose had to be assessed in context.
4. On the evidence, the gifts were intended partly to reimburse the daughters for expenditure and care already provided and partly to assist with the foreseeable costs of the deceased’s care and accommodation. They were not intended as portions or as an anticipation of the daughters’ shares under the will.
5. The estate was therefore to be distributed by dividing the residue in accordance with the will, without taking the gifts into account.

First-instance decision. No prior appellate decision is stated in the judgment.