It is important to establish a testator’s intent when shemakes both a lifetime gift and a gift by will to the same child. When thisoccurs the rule against “double portions” is applied. The rule creates apresumption that a parent would not intentionally give preference to one childby giving him both a lifetime gift and a gift made by will. The donor’s intentcan be derived from the totality of the circumstances. Additionally, the ruleindicates the lifetime gift will be deducted from the gift made in the will. Asa result, the remaining portion of the gift made by the will (the doubleportion) will adeem. The leading case on the double portion rule states therule applies to both parents and that the gift does not need to be given directlyto the child of the donor. The requirement instead is that the child mustreceive the lifetime gift benefits. Case law does note that just because asubstantial gift is given to one child does not necessarily mean it will bededucted from the gift made in the will. Therefore, a statement of intentdisclosing the gift giver’s intent is helpful.
See Lesley King, Probate Establishing the Testator’s Intention, Law Society Gazette.com, Mar. 25, 2013.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this to my attention.
