If you have ever received a substantial gift from an elderly parent, or if you know that you will be receiving a gift under that parent’s will, the law may presume that you have received that gift as a result of your “undue influence” over that parent, and set aside the gift.
Section 52 of the new Wills, Estates and Succession Act creates a presumption of undue influence where the potential for dependence or domination is present in a relationship between a will-maker and an individual receiving a gift under the will. If there is such a relationship, the law will presume that the will-maker made the gift as a result of the recipient’s undue influence. It is then up to the recipient to prove that he or she did not exercise any undue influence over the will-maker.
The same presumption has always applied to gifts made during the will-maker’s lifetime, provided the necessary relationship of dependency is established.
Given our aging population and the significant number of independent adult children who provide care for their elderly parents, care will have to be taken to ensure that elderly individuals are receiving the proper advice, and that their intentions are being appropriately documented. Otherwise, there is a risk that gifts to well-intentioned children could be challenged, and potentially set aside as invalid.