Re Frost; Kloosman v Aylen & ors [2013] EWHC 435 (Ch)

Analysis

Richard Frost (the deceased) died on 4 March 2008. He left a will, dated 26 September 2007, which distributed his estate as to one-third to each of his daughters, Linda Aylen and Susan Frost, one-sixth to his estranged son Andrew Frost and one-twelfth to each of Andrew’s children. At the time of making his will the deceased had no concept of how much his house was worth and he had no intention of selling it, although he had been living with Linda and her family since April 2007.

In November 2007 the deceased’s house was sold and he received net proceeds of £353,480. The house was the deceased’s only substantial asset. Knowing he was dying of cancer, the deceased gave each of his daughters a gift of £100,000. At his death, the deceased’s net estate was valued at £137,078. A dispute arose between the beneficiaries as to whether the deceased had intended the lifetime gifts to his daughters to be advances on his daughters’ inheritance under his will. Mr Kloosman, a solicitor and the deceased’s executor, sought guidance as to whether the rule against double portions should apply and these gifts should be brought into account when distributing the deceased’s estate.

Witness statement evidence was submitted which stated that the lifetimes gifts were actually made in recompense for the support and assistance which the deceased’s daughters had given him over the years. Susan had managed his household and financial affairs prior to him moving in with Linda. She had also supplemented his state pension. When things became too much for Susan to cope with, Linda and her husband had moved the deceased in with them and adapted their home for his comfort. Linda also gave up her job in order to care for him in his last months.

Held:

1. (1) The court had to consider two rules, the presumption against double portions and the doctrine of ademption. Re Cameron states that for a gift to be a portion the gift must be intended to set up a child in life or make substantial provision for that child. There is a rebuttable presumption that a donor would not intend to give two portions to that child and that the lifetime gift is intended to substitute the bequest. Where the presumption prevails, the doctrine of ademption applies and the lifetime gift is treated as part of the child’s share of the estate.
2. (2) Until the deceased’s home was sold he had no money and he was dependent on his daughters. He had no expectation that his estate would amount to a considerable sum as he was not aware of the value of the house, nor did he expect to die so soon after making his will. He could not have known that £100,000 would be approximately one third of his estate. It was not realistic to expect someone of the deceased’s background to contemplate recompensing his daughters for their money and time by adjusting his will provisions accordingly.
3. (3) On the facts it is clear that the inter vivos gifts were not intended as portions but were to repay the deceased’s daughters for what they had already spent taking care of him and to cover the cost of his future care and housing until his death. The presumption against double portions did not arise.
4. (4) The estate shall be distributed in the manner set out in the will without taking account of the inter vivos gifts.

Cases referred to Re Cameron [1999] Ch 386

JUDGMENT VIVIEN ROSE: [1] This application concerns the will of Mr Richard Frost (Mr Frost) who died on 4 March 2008. The executor of the will is the claimant, Mr Kloosman, a solicitor. [2] Mr Frost was bom on 11 May 1923 and so was 84 years old when he died. The will was signed …

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