The rule against double portions can apply when a donor leaves one of his children a portion of his estate under his Will then during his lifetime makes the same child a substantial gift.
Depending on the circumstances, the substantial gift could be regarded as a payment on account of the legacy under the Will. In that situation, the legacy received by the child under the Will would need to be reduced by the amount of the gift.
There is a general presumption that a donor would not intend to give the same gift twice. This presumption can only be overturned by appropriate evidence.
The Rule was summarised by Greene MR in Re Vaux [1938] where he stated that:
‘The rule against double portions rests upon two hypotheses:
(i) that under the will the testator has provided a portion
(ii) that by the gift inter vivos, which is said to operate in ademption of that portion either wholly or pro tanto, he has again conferred a portion.
The conception is that, the testator having in his will given to his children that portion of the estate which he decides to give to them, when, after making his will, he confers upon a child a gift of such a nature as to amount to a portion, then he is not to be presumed to have intended that that child should have both, the gift inter vivos being taken as being on account of the portion given by the will.’
Broadly for a gift to fall within the scope of the rule:
- The gift must set the child up for life or be substantial enough to be a portion
The case of Re Clapham established that a gift of £20,000 was substantial enough to be a portion.
- The gift shall be for the benefit of a child of the donor
Whilst in general the gift must be for the benefit of a child of the donor, the case of Re Cameron (deceased) [1999] 2 All ER 924, established that a gift by a grandparent for the benefit of a grandchild could also in certain circumstance be considered to be for the benefit of the grandchild’s parent. In this situation, it was for payment of the grandchild’s school fees.
- The intention of the donor at the time the gift was made should have been that the gift was to be a portion
In identifying the donor’s intention the Court will look at various factors including the circumstances under which the gift was made, the purpose of the gift and the size of the gift.
The donor’s intention need not have been express and can be inferred from the circumstances (Re Eardley’s Will [1920] 1 Ch 397).
The rule also applies where gifts are made by an attorney on behalf of a person who has lost capacity.
In practice the issue of double portions often arises during the administration of an estate when lifetime payments by the donor to one of his children become apparent.
