Ambiguity in a Will often results in disputes amongst beneficiaries. Take for example, ‘double gifting’. This can happen in one of two ways:
- Scenario 1: Spouses make ‘mirror’ Wills with identical gifts to the same beneficiary. Did they mean the beneficiary to receive the gift twice, or was their intention that the gift was made only once?
- Scenario 2: A testator makes a significant gift to a beneficiary during their lifetime (an inter vivos gift) and the same gift appears in their Will. Was the testator’s intention to make both gifts or should the inter vivos gift be considered an ‘advance on inheritance’?
These issues can be addressed through clear communication, care taken in drafting the Will, (for example the use of hotchpot clauses), appropriately recording lifetime gifts and ensuring good record keeping. Let’s talk about this further…
The Issue of Double-Gifting in Mirror Wills
Spouses or partners often create mirror Wills, where each leaves an identical gift to a beneficiary. If the intention is for the gift to be made only once, failing to clarify this intention can result in the beneficiary receiving the gift twice—once from each estate.
For example:
- A husband and wife each include a clause leaving $50,000 to a charity in their respective wills.
- If they intended for the charity to receive only $50,000 in total, but both pass away with unchanged Wills, the charity may receive $100,000 instead—$50,000 from each estate.
- If this was not the couple’s intention, other beneficiaries may receive less than planned.
To avoid this issue, the Wills should state clearly whether the gift is to be made once, or from each estate.
Have you unintentionally created confusion in your Will? Clarify your gifts now before it’s too late, call us on 1300 654 590 or email us.
Inter Vivos Gifts (or lifetime gifts)
Generally, the law leans against a child receiving two substantial provisions – one by Will and another during the parent’s lifetime – unless there is evidence to the contrary. Two main classes of cases involving inter vivos gifts include:
Scenario 1: Where a parent gives a legacy to their child (or someone they stand in loco parentis to) and subsequently makes a gift or advance of substantially the same nature as the legacy to that same person during their lifetime.
Scenario 2: Where a person gives a legacy for a particular purpose and subsequently makes a gift or advance to the legatee for the same purpose.
In these situations, it is presumed that the donor did not intend the beneficiary to receive both the testamentary gift and the lifetime gift, and the latter is considered to be in satisfaction of the former, either fully or partially, depending on the value. However, this presumption can be rebutted by evidence showing that the donor intended both gifts to have effect. Conversely, evidence can also be provided to confirm the presumption. Crucially, what is needed to rebut the presumption is evidence the intention of the donor to adeem (take away) the legacy was communicated to the donee at the time of the making of the lifetime gift.
Do the gifting provisions in your Will need to be reviewed? We can help. Call us on 1300 654 590 or email us to find out how.
Hotchpot Clauses
We have thrown a bit of Latin at you already, now for a bit of medieval French. ‘Hochepot’ in Norman times meant a stew or mixture of different ingredients. This metaphor was applied to inheritance law, where property or assets from different sources were ‘mixed together’ to create a fair and balanced division.
A hotchpot clause ensures that any significant inter vivos gifts are considered when distributing the estate. This prevents one beneficiary from receiving an unfair advantage over others.
For example, if a parent gives $100,000 to one child during their lifetime but not to their other children, a hotchpot clause ensures that this amount is deducted from that child’s share of the estate before dividing the remaining assets among all beneficiaries.
Without a hotchpot clause, the child who received the gift could also inherit a full equal share of the estate, effectively receiving more than the testator intended.
Are you concerned that the gifting clauses in your Will could lead to unfairness? Let us advise you. Call us on 1300 654 590 or email us to find out more.
Strategies to Avoid Ambiguity in Your Will
- Clarify Your Intentions in the Will
- If you want a inter vivos gift to be an advance on inheritance, explicitly state how it should be deducted from the beneficiary’s share.
- If the inter vivos gift is separate from the inheritance, include a clause stating that it does not affect the beneficiary’s entitlement under the Will.
- For mirror Wills, specify whether identical gifts to the same beneficiary is intended to be given once or twice.
- Consider including a hotchpot clause that deducts inter vivos gifts from the final inheritance.
- Deed of Gift
- Record the making of an inter vivos gift in a Deed of Gift. If it is your intention that the gift is an advance on inheritance you must communicate this to the donee at the time of the inter vivos gift.
- Using a well-drafted Deed of Gift helps create a clear record of the gift being made, and resolves any ambiguity about whether the gift is separate to a beneficiary’s inheritance.
- Keep Records of Inter Vivos Gifts
- Maintain clear documentation, such as receipts, bank transfers, or signed letters, explaining whether a gift was intended as an early inheritance or a separate gift.
- Update Your Will Regularly
- Communicate your estate planning objectives to your solicitor. Good instructions help your legal adviser to draft the most appropriate Will for you.
- If you make a large inter vivos gift, review and update your Will accordingly.
- Ensure that any mirror Wills are updated to prevent double-gifting issues.
If you have made substantial inter vivos gifts or created a mirror Will with your spouse, reviewing your estate plan is essential. If there is a dispute, Courts may distribute assets in a way that you did not intend.
How We Can Help
Estate planning involves complex legal considerations, and ambiguity in your Will can lead to unintended consequences. We can help by:
- Drafting a Will that clearly addresses double-gifting concerns.
- Including hotchpot clauses if necessary.
- Reviewing your estate plan to minimise disputes.
- Advising on alternative ways to provide for beneficiaries, such as trust structures, jointly owned assets, superannuation and life insurance.
- Helping you maintain proper records and updating your Will as needed.
If you wish to avoid ambiguity in your Wills and potentially disputes in your family, call us on 1300 654 590 or email us.
The information contained in this post is current at the date of editing – 21 March 2025.
