Sometimes the will is fine. The problem is that by the time the person died, there was almost nothing left for it to deal with. The house had been transferred into a relative’s name.
The savings had gone into a joint account and passed automatically to the other account holder. Large sums had been withdrawn in the final years, when the deceased was frail and someone else was managing their money.
These situations are as common as disputed wills and often more serious, because the assets have already moved. But the law does not treat a lifetime transfer as beyond challenge. Gifts made without capacity, or under pressure, may be set aside.
Money in a joint account does not always belong to the survivor. And the Inheritance Act can reach back to gifts made to defeat a claim. Specialist solicitors can investigate on a genuine No Win No Fee basis.
Lifetime gifts: the questions the court asks
Did the person have capacity to make the gift?
The test for capacity to make a gift comes from Re Beaney [1978] 1 WLR 770. The degree of understanding required depends on the size and effect of the gift. A small present needs little.
A gift of the family home, which is most of what the person owns, requires the same level of understanding as making a will: they must appreciate what they are giving away, what is left, and the effect on the people who would otherwise inherit.
In Kicks v Leigh [2014] EWHC 3926 (Ch) the High Court confirmed that this common law test, rather than the Mental Capacity Act 2005, governs lifetime gifts. The mother was found to have capacity, but her gift of nearly £293,000 to one daughter was still set aside because the presumption of undue influence, explained below, was not rebutted.
Was the gift the result of undue influence?
Unlike wills, lifetime gifts benefit from a presumption. Where the recipient was in a relationship of trust and confidence with the giver, such as a carer, an attorney, or an adult child managing a parent’s affairs, and the gift is one that calls for explanation, the law presumes undue influence.
The recipient must then prove that the gift was made freely and with full understanding, usually by showing independent advice was given. If they cannot, the court may set the gift aside.
Was the recipient an attorney or in another fiduciary position?
An attorney under a lasting power of attorney, or anyone else managing the deceased’s money, is not allowed to benefit from that role beyond what the law and the document permit. Gifts to themselves, or to their family, beyond modest customary presents may be a breach of duty, and the estate may be able to recover them.
In MacDougall v Thomas [2026] EWHC 1142 (Ch) the High Court upheld the deceased’s will but set aside or ordered compensation for a series of lifetime transactions tainted by undue influence, lack of capacity, and breaches of an attorney’s duties.
The case shows that the will and the lifetime dealings are looked at separately, and that a valid will does not launder what went before.
Joint bank accounts
When one holder of a joint account dies, the bank pays the balance to the survivor. That is a matter of banking convenience. Who is entitled to the money is a separate question.
If the deceased put their own money into a joint account with a relative for convenience, so that the relative could pay bills and manage affairs, the money may still belong to the estate.
If the deceased intended the survivor to have it, it passes to them. The answer depends on evidence of intention: what the deceased said, why the account was opened, whose money went in, and how it was used.
Disputes of this kind turn on the documents and the witnesses, so a solicitor will usually ask the bank for statements going back several years at the outset. Bear in mind that the bank will pay the survivor whatever the deceased intended, so the estate’s claim is against the survivor, not the bank.
Property put into joint names
A house transferred into the joint names of the deceased and a relative as joint tenants passes automatically to the survivor on death, outside the will. The same questions arise as for gifts: did the deceased have capacity to make the transfer, was it the result of undue influence, and was it what they actually intended?
Where a joint tenancy was created but the deceased later changed their mind, they may have severed it, converting it into a tenancy in common so that their share passes under the will.
Severance can happen by written notice or by conduct. The methods were set out in Williams v Hensman (1861) 1 John & H 546 and remain the law.
The Inheritance Act reaches back
Even where a gift was validly made, section 10 of the Inheritance (Provision for Family and Dependants) Act 1975 allows the court to treat gifts made within six years of death as part of the estate for the purposes of an Inheritance Act claim, if the gift was made with the intention of defeating such a claim.
Section 9 allows the court to treat the deceased’s share of jointly owned property as part of the estate to the extent it considers just. Since 2014 this power is available even where the court has extended the usual six month time limit.
These provisions matter where a parent has stripped the estate to make sure a particular child gets nothing.
In Cockell v Cockell [2025] EWHC 2490 (Ch) the court declined to make a section 9 order over the family home on the facts, but indicated that such an order might be just where the share had been gifted, bought with the deceased’s money alone, or placed in joint names to take it out of the estate.
Warning signs
- The deceased’s money was managed by one relative in the final years.
- Large withdrawals, transfers, or new joint accounts appeared after a diagnosis of dementia or a serious illness.
- The house was transferred, or put into joint names, without independent legal advice for the deceased.
- The recipient was an attorney, a carer, or lived with the deceased.
- The deceased’s will, made earlier, divides an estate that no longer exists.
If two or more of these apply, it may be worth a free conversation with a specialist. Call 0161 532 8111 or contact us. There is no obligation and nothing to pay to find out where you stand.
Evidence that matters
Bank statements going back several years, obtained from the bank by the executor or through the court. Land Registry records showing when and how property was transferred.
The file of any solicitor involved in a transfer, and whether the deceased received separate advice. Medical records showing capacity at the relevant dates. The lasting power of attorney and the attorney’s records, if there was one.
What is not enough on its own
A parent is free to give away their property during their lifetime, and to favour one child. A gift made freely, with capacity and without pressure, will stand. The court intervenes where those conditions were not met, or where the gift was designed to defeat a claim.
Time limits
Claims to set aside lifetime gifts have different limitation periods depending on the ground relied on, and where the transfer was concealed time may not start until it was discovered. Whatever the period, delay makes tracing money harder.
If the abuse is discovered while the person is still alive, the route is different: a report to the Office of the Public Guardian where an attorney is involved, or an application to the Court of Protection. Inheritance Act claims, including any application under sections 9 or 10, must be issued within six months of the grant of probate.
Frequently asked questions
Who brings the claim, me or the executor?
A claim to recover assets belongs to the estate, so it is normally brought by the executor. If the executor is the person who received the assets, or refuses to act, a beneficiary can apply to have them removed or can seek the court’s permission to bring the claim in the estate’s name.
The transfer was done by a solicitor. Does that make it safe?
Not necessarily. The question is whether the deceased received independent advice, whether their capacity was checked, and whether the solicitor was acting for the deceased or for the recipient.
The money was in a joint account for years. Surely it belongs to the survivor?
Length of time is relevant but not decisive. If the account was opened for convenience and only the deceased’s money went in, the estate may still be entitled to it.
Can gifts to grandchildren or charities be challenged too?
Yes, on the same grounds. The identity of the recipient does not change the test, although the presumption of undue influence only arises where there was a relationship of trust and confidence.
What does No Win No Fee actually cost me?
If the claim succeeds, the solicitor’s success fee and any insurance premium usually come out of the sum recovered. If it fails, you pay nothing towards your solicitor’s fees. The solicitor explains the terms in writing before you sign. There is no fixed minimum claim value. Each case is assessed on its own merits.
How C-PAID can help
C-PAID puts you in touch with specialist contentious probate solicitors who know how to trace assets and set aside transfers. The review is free, and where a solicitor takes your case, they act on a genuine No Win No Fee basis.
If the estate looks smaller than it should be, find out why. Contact us today or call 0161 532 8111.
This article is for general information only and does not constitute legal advice. Every case depends on its own facts. C-PAID does not provide legal advice. We help connect people with specialist contentious probate solicitors.
