Challenging lifetime dispositions
Produced in partnership with Emma Holland of Stewarts
Challenging lifetime dispositions

The following Wills & Probate guidance note Produced in partnership with Emma Holland of Stewarts provides comprehensive and up to date legal information covering:

  • Challenging lifetime dispositions
  • The nature of disputes as to lifetime dispositions
  • Challenging lifetime dispositions
  • The test for capacity to make lifetime gifts and the burden of proof
  • Undue influence and unconscionable bargains
  • Deathbed gifts (donatio mortis causa)
  • Jointly held property and resulting trusts (including the presumption of advancement)
  • Other potential challenges
  • Bringing a claim challenging a lifetime disposition and duties of the personal representatives

The nature of disputes as to lifetime dispositions

Particularly where an estate appears to be smaller than anticipated, personal representatives (PRs) and beneficiaries often have queries and concerns about dispositions made by the deceased during their lifetime. These dispositions may include gifts, asset sales which appear to have been made at an undervalue, loans on favourable terms, solely owned assets which were transferred into joint names and deathbed gifts.

Where the deceased's affairs were being dealt with by an attorney or deputy the focus of investigations may need to include them.

Challenging lifetime dispositions

There are a number of bases upon which a lifetime disposition may be challenged. Such claims may involve allegations that:

  1. the deceased lacked capacity (including concerns relating to potential abuse by an attorney or deputy)

  2. the deceased was subjected to undue influence, and

  3. the requirements for a valid deathbed gift (donatio mortis causa) were not met

The test for capacity to make lifetime gifts and the burden of proof

The common law test for establishing mental capacity to make a lifetime gift is set out in the case of Re Beaney and is described as an ability to understand, rather than actual understanding:

‘…the question in each case is whether the person concerned is capable of understanding what he does by executing the deed in