Analysis
Richard Frost (the deceased) died on 4 March 2008 leaving a will dated 26 September 2007 (the will). The will bequeaths the deceased’s residuary estate on trust as to one third for each of his daughters, Linda Aylen (Linda) and Susan Frost (Susan), one sixth to his son Andrew Frost (Andrew) and one twelfth to each of Andrew’s two children. The deceased’s only asset of significant value was his property in Lewisham. He sold this shortly after making the will and realised net proceeds of £353,480. He had at that time been living with Linda for several months and continued to do so until his death. Prior to selling the property the deceased had no realistic idea of its value. Both Linda and Susan invested considerable time and money in caring for the deceased in his last years, particularly after he was diagnosed with bowel cancer in April 2007. Prior to selling the property he was dependent on his daughters to manage his financial and household affairs. Linda spent considerable sums adapting ongoing renovation to her house in order to accommodate the deceased. Andrew had been estranged from the deceased for a number of years prior to his death. On 2 November 2007 the deceased made monetary gifts of £100,000 each to Linda and Susan which were funded from the proceeds of sale of his property. At the date of his death the deceased’s estate was comprised almost entirely of the remaining proceeds of sale, being £143,103 gross and £137,078 net. Thus, the size of the cash gifts to Linda and Susan were of a similar size to what would have been one third of the residue had they not been made, such sum being £112,359. In those circumstances the executor sought directions as to whether the presumption against double portions applied so that the gifts to Linda and Susan should be treated as part of their shares of the residuary estate.
Held:
- (1) Prior to selling his property and at the time that he made the will the deceased had no financial resources and was dependent on Linda and Susan to manage his financial and household affairs. He did not realise the value of his Lewisham property and did not expect that his estate would amount to any considerable sum. When he made the gifts to Linda and Susan he did not expect that he would die so soon and therefore could not have known that £100,000 would in fact turn out to be about one third of the value of his residuary estate at death. It was not realistic to expect someone of his background to contemplate recompensing his daughters for their money and time by adjusting the provisions of his will.
- (2) It was clear that the gifts to Linda and Susan were not ‘portions’ but rather were intended to repay them the sums of money that they had already spent on his care and in part to help them finance the inevitable future costs of his care and housing for the remainder of his life. The gifts fulfilled that purpose in that they allowed Linda and Susan to ensure that the deceased lived in relative comfort until his death. As such, the presumption against double portions did not arise.
Continue reading "Re Frost (dec’d) [2013] EWHC 435 (Ch)"