Stewarts Law
4 Experts
2 Contributions by Stewarts Law Experts
PRACTICE NOTES
The nature of disputes as to lifetime dispositions
Where an estate proves to be less than expected, personal representatives (PRs) and beneficiaries frequently raise questions and concerns about transactions the deceased undertook while alive. These may encompass outright gifts, asset disposals apparently at an undervalue, loans on favourable terms, sole assets placed into joint names, and deathbed gifts. If an attorney or deputy managed the deceased’s affairs, enquiries may need to focus on their conduct as well.
There are several grounds on which a lifetime disposition can be contested. Allegations may include:
the deceased lacked capacity (including potential abuse by an attorney or deputy)
the deceased was subjected to undue influence, and
the criteria for a valid deathbed gift (donatio mortis causa) were not satisfied
The test for capacity to make lifetime gifts and the burden of proof
The common law test for mental capacity to make a lifetime gift is found in Re
Private Client
Q&As
It is not clear whether the donor holds a lasting power of attorney (LPA) for property and affairs (P&A), for health and welfare (H&W), or both. As attorneys have determined that the donor’s home should be sold (necessitating a P&A LPA) and that the donor should move into a care home (necessitating a H&W LPA), we proceed on the basis that both LPAs exist and have been registered. We also proceed on the basis that there is more than one attorney. Where authority to act is several rather than joint, the lending attorney may opt out of any decision in which they have a conflict of interests. It is further assumed that:
the donor had adequate capacity to enter into the loan
the LPAs do not include specific instructions or preferences about when the donor’s home is to be sold and/or when they are to
Private Client
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