How to Challenge a Lifetime Gift or Transfer Before Death

Introduction

When someone gives away property, money, or assets during their lifetime, it is usually a genuine and well-intentioned decision. But sometimes, these lifetime gifts or transfers are made in questionable circumstances — for example, when the person lacked capacity, was pressured, or did not fully understand what they were signing away.

These transactions can drastically reduce the size of the estate left behind, leaving beneficiaries with much less than expected. In some cases, they may even be the result of fraud or financial abuse.

If you believe a lifetime gift or transfer before death was unfair or improper, you may be able to challenge it and recover assets back into the estate. At Jonathan Lea Network, our experienced contentious probate team regularly advises families, beneficiaries, and executors on how to investigate and contest these transfers.

What Is a Lifetime Gift or Transfer?

A lifetime gift (sometimes called an “inter vivos transfer”) is when a person transfers money, property, or other assets while still alive. These can include:

• Cash gifts – either small or substantial amounts, sometimes regular payments.
  
• Property transfers – placing a home into joint names or transferring ownership entirely.
  
• Loans or financial support – later claimed to have been outright gifts.
  
• Other assets – jewellery, vehicles, shares, or valuable items.
  

While many gifts are valid, problems arise when there are questions about the donor’s mental capacity, understanding, or freedom of choice at the time.

Why Disputes Arise

Disputes over lifetime gifts or transfers before death are common in probate and estate cases. They usually occur because:

• The gift significantly reduced the estate, leaving other beneficiaries disadvantaged.
• The donor was elderly, ill, or vulnerable, raising questions of capacity.
• The recipient was in a position of trust or influence (such as a family member, carer, or attorney).
• The transaction was secretive or inconsistent with previous intentions.
• The transfer was potentially used to avoid care home fees or creditors.
• The donor was subject to fraud or deliberate deception.
  

These concerns often emerge only after the donor has passed away, leaving family members to investigate and challenge what happened.

Grounds for Challenging a Lifetime Gift or Transfer

There are several legal grounds on which a gift or transfer may be challenged:

1. Lack of Mental Capacity

To make a valid gift, the donor must understand what they are giving away, the value of the asset, and the consequences of the transfer. If they lacked mental capacity at the time (for example, due to dementia), the gift can be declared void.

Courts apply principles similar to those in will disputes, such as the test in Re Beaney (1978), which held that the level of understanding required depends on the seriousness of the gift — the greater the asset, the greater the mental capacity required.

2. Undue Influence

A gift may be overturned if it was the result of pressure, coercion, or manipulation. There are two types of undue influence:

• Actual undue influence – where evidence shows coercion or threats.
  
• Presumed undue influence – where there is a relationship of trust (such as parent/child, carer/patient), and a substantial or unusual gift is made.
  

If the recipient cannot prove the gift was freely given, it may be set aside. Recent cases, such as Paull v Paull (2018), illustrate how undue influence can invalidate transfers.

3. Fraud or Deception

If a donor was misled or deceived into transferring assets — for example, signing documents they did not understand — the transaction may be void for fraud. Similarly, if a Power of Attorney abuses their authority by making improper gifts, these can be challenged.

4. Mistaken Belief or Lack of Knowledge

If a donor did not fully understand the nature of the gift (for example, thinking it was temporary or conditional), the transaction may be invalid.

5. Deprivation of Assets

Sometimes gifts are made deliberately to avoid care home fees or reduce inheritance tax. These transactions can be investigated by local authorities and may also be challenged in probate disputes.

How to Challenge a Lifetime Gift

The process usually involves several stages:

1. Initial legal advice – An early consultation can help assess whether there is evidence of undue influence, fraud, or lack of capacity.
   
2. Gathering evidence – Medical records, solicitor’s notes, bank statements, and witness testimony are key to building a case.
   
3. Pre-action correspondence – Lawyers may write to the recipient challenging the validity of the gift and requesting repayment or transfer back.
   
4. Negotiation or mediation – Many disputes settle outside court through constructive discussion.
   
5. Court proceedings – If settlement is not possible, proceedings may be issued to set aside the transaction and restore assets to the estate.
   

Remedies Available

If successful, the court can:

• Set aside the transaction and restore the property to the estate.
  
• Order repayment of money transferred.
  
• Declare a constructive or resulting trust, ensuring assets are held for the benefit of the estate.
  
• Compel an attorney or fiduciary to account for gifts made improperly under a Lasting Power of Attorney.
  

Why Act Quickly

Disputes over lifetime gifts and transfers should be raised promptly. The longer you wait:

• The harder it may be to obtain evidence (e.g. medical files, bank records).
  
• Beneficiaries may lose their chance to recover assets if they are sold or dissipated.
  
• Court proceedings may become more complex and costly.
  

Taking swift legal advice ensures your position is protected.

Why Choose Jonathan Lea Network

At Jonathan Lea Network, we pride ourselves on:

• Specialist expertise in probate and inheritance disputes, including complex lifetime gift cases.
  
• Clear and approachable advice — we explain your options in plain English.
  
• Strategic dispute resolution — exploring mediation first, but fully prepared for court action where necessary.
  
• Strong track record — successfully recovering assets for estates and beneficiaries.
  
• Compassionate support — we understand these disputes often involve family members and sensitive relationships.
  

Our Process

1. Free initial consultation – We discuss your concerns, review key facts, and outline possible grounds for challenge.
   
2. Investigation and evidence gathering – We obtain medical evidence, solicitor’s files, and financial documents.
   
3. Engagement with the recipient – We raise concerns formally and explore settlement.
   
4. Court application (if required) – We pursue proceedings to set aside the transfer and recover estate assets.
   
5. Resolution and enforcement – We ensure outcomes are implemented and beneficiaries receive their fair share.
   

Common Client Concerns

• “My parent transferred their house to my sibling before death — can I challenge it?”
  Yes, if there are concerns about capacity, undue influence, or unfair pressure.
  
• “How do I prove undue influence?”
  Direct evidence can be difficult, but the law often presumes undue influence in trusted relationships, shifting the burden onto the recipient to prove the gift was freely given.
  
• “Is it too late to act after someone has died?”
  No — many challenges are brought after death, as that is when gifts come to light. Acting promptly is key to protecting the estate.
  
• “What if the donor is still alive?”
  If they lack capacity, the Court of Protection can intervene. Attorneys acting improperly can be removed by the Office of the Public Guardian.
  
• “Will this cause a family conflict?”
  Possibly, but we handle matters sensitively and prioritise settlement where possible to preserve relationships.
  

Contact Us

If you believe a lifetime gift or transfer before death was improper, don’t delay. The sooner you act, the greater the chance of protecting the estate and recovering assets.

Contact Jonathan Lea Network today for a free, confidential consultation. We will assess your case, explain your options clearly, and help you secure the fair outcome you deserve.

Call +44 (0)1444 708 640 

Email wewillhelp@jonathanlea.net 

Frequently Asked Questions (FAQs)

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