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Challenges To Lifetime Gifts And Property Transfers


When a person leaves property to his family members and loved ones in a will or trust, there is always a possibility that someone will challenge the validity of the bequests after the death of the testator. While challenges to gifts to beneficiaries that are distributed after the testator’s death are expected, there is also a possibility of gifts given during the testator’s lifetime being challenged as invalid.

A testator can make distributions of his property during his lifetime in what are known as inter vivos gifts. Inter vivos gifts are gifts or transfers of property that a testator makes to others during his lifetime. For example, if a person signs over the deed to a piece of land to another person as a gift, without it being a sale or in exchange of anything, this transfer may be characterized as an inter vivos gift.

Inter vivos gifts are commonly challenged on some of the same legal grounds as wills, for example undue influence and fraud. Therefore, a person who wants to avoid a will challenge after his death and makes his gift before he dies cannot be guaranteed that the inter vivos transfer will not be challenged anyway.

Large inter vivos gifts and deed transfers to caregivers and other restricted people are viewed with suspicion. This is because these people are in a position to influence the testator’s actions, especially if the testator is seriously ill and requires constant care. Bequests in wills that leave property or money to care givers are also viewed with suspicion.

Proof of inter vivos gifts can also be used to show that a person who is contesting a will actually received his share of an inheritance during the testator’s lifetime. For example, a father leaves his property to his two children in through a will which leaves a larger share to one child over the other. The child who receives less in the will can contest the will arguing that his sibling received more in the will because of undue influence. However, the sibling who received more under the will can argue that the contesting sibling actually received his inheritance while their father was alive, and that accounts for the difference in how the property was divided in the will.

If a testator makes an inter vivos gift or transfer and intends it to be the recipient’s inheritance, the testator should document that intention to ward off challenges to the transfer later on. Documenting the intention behind an inter vivos gift also ensures that the testator’s wishes are likely to be honored after his death.

Contact Us for Legal Assistance

Despite the possibility of a challenge to an inter vivos gift, there are many valid reasons for a person to make an inter vivos gift or transfer. In order to determine whether making such a gift or transfer fits into your larger estate planning goals, you should consult an experienced estate planning attorney. Contact the Millhorn Elder Law Planning Group located in The Villages, Florida for a consultation.



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