Promise or Gift Before Death

Can a gift made before death be challenged?

It sometimes happens that a person makes a significant gift prior to their death. A beneficiary who receives less, or nothing, as a result, may want to challenge the gift.

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There are a number of ways to challenge a gift made before death, including:

  • Mental Capacity - If a person was not of sound mind when making the gift, the gift can be challenged.  Evidence will need to be produced to show this, and we can advise you on exactly what you will need and how to obtain it.
  • Undue Influence - If a person made the gift as a result of coercion or pressure from another, then the gift can be challenged. Again evidence will be needed, and we can advise you on exactly what you will need and how to obtain it.
  • Attorney acting outside of powers - There are instances where a person has power of attorney over another and makes gifts.  Attorneys only have the power to make small gifts to charity or birthday or seasonal gifts of a similar value to those made by the person concerned when they had capacity.

If more substantial gifts are made, without the approval of the court, they can be challenged.

Is a promise or a gift made before death enforceable?

In some cases, a promise made by a person before death can be enforceable, even if that promise is not provided for in a Will. This is known legally as “proprietary estoppel”.

To establish this type of claim there must be:

Promise
Party A must assure Party B that Party B will obtain a benefit after Party A dies

Reliance
Party B must reasonably rely on Party A’s representation or assurance

Detriment
Party B must incur a detriment as a result of his reliance on Party A’s representation or assurance.

Often, this includes providing care for the person before they die, or spending money on a property.

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