Kelly v Kelly – Estate Planning and Gifts
The presumption of advancement lives!
The presumption of advancement means that an amount paid by a parent to a child will be presumed to be a gift unless there is evidence to the contrary.
A recent decision in England highlights the importance of proper estate planning and of recording deeds of gift or loan arrangements in writing.
In Kelly v Kelly (2020) 3WLUQ94, a blended family dispute played out in court, in which the son of a first marriage asserted that a certain amount was given to him as a gift, whereas the second spouse and her children asserted that the amount was a loan.
Despite finding significant credibility gaps on the part of the key witnesses, the court relied on the presumption of advancement to determine that the amount was a gift.
It is yet another lesson in the importance of documenting family transactions in detail.
The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.
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Geoff Stein
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