If the gifts were made while the deceased was susceptible to undue influence or was in a vulnerable position, for example due to illness or if they had reduced mental capacity, then it is possible to make an application to set aside the gifts and return any property or money to the estate.
Challenging a Lifetime Gift
During a person’s lifetime, they may make a gift to another person for any number of reasons. It may be for birthdays, to help families/friends with expenses or education, or it may even be for tax purposes. Alternatively, gifts may be intentionally made to avoid creditors, guard against future claims under the Inheritance Act or for the payment of care fees. Difficulties can arise in such circumstances if there is a concern that the person making the gift has not done so of their own free will. Should you be concerned about a situation like this, our team of experts can advise and guide you.
Lifetime gift rules
- It is important that all gifts are made by a person (the donor) of their own free will. The donor should not have been pressured into making the gift by another person and the donor should have had the requisite mental capacity to do so.
The gift cannot have been made fraudulently by another person.
If an attorney or deputy has made a gift on behalf of the donor, then they ought to have done so within the authority they have been given.
If a gift has not met the necessary requirements, then it may be possible to challenge that gift, even after the donor has passed away.
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