Can a Gift made during a Deceased's Lifetime Affect their Will?

Gifts made to a family member during the will maker’s lifetime can become relevant when there is a challenge to their Will.

When will the deceased owe a Moral Duty?  

A deceased person owes moral duties to their immediate family members.

A common example of a moral duty is the responsibility parents have to provide for the “proper maintenance and support” of their children.

A recent High Court case held that a father owed a moral duty to his daughter despite being estranged from her for 30 years.

 What is ‘Proper Maintenance and Support’?

What is proper maintenance and support will depend on the circumstances. However, courts have held that it may be more than mere financial support. In some cases, a monetary payment may be required in recognition of the will maker’s duty to provide emotional support to their family member.

For example, a recent judgment dealt with a claim by two daughters who were left nothing in their father’s Will. Despite neither daughter requiring financial support, each was awarded 10 per cent of their father’s estate in some recognition of his lack of emotional support over their lifetimes. This amounted to approximately $770,000 each.

When will lifetime gifts be relevant?

Lifetime gifts can become relevant when a Court is asked to decide whether a deceased person has met their moral duty to adequately provide for the maintenance and support of his or her family member.

The Court may take lifetime gifts into account when determining the amount payable to a claimant from the Estate.

In one High Court case the judge took the value of lifetime gifts into account when making awards. During his lifetime the father had gifted the first child shares in a company which were worth more than was gifted to the second child in his Will. As a result, the Court awarded the first child only $25,000 from the Estate, and the second child was awarded $200,000.

While courts will not rewrite wills, they may alter wills where the will maker has failed to adequately provide for a family member.

If you are unsure whether this could affect your will, or are looking to create a will, it is important to take legal advice.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.