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Tied up

Re JDS shows that the Court of Protection is not likely to authorise a gift out of funds from personal injury awards, reports Joseph Goldsmith

18 February 2012

There has been only one reported decision on an application to make a lifetime gift since the Mental Capacity Act 2005 (MCA) came into force: Re G(TJ) [2010] EWHC 3005 (COP). A recent decision of Senior Judge Lush, published under the anonymised name of Re JDS, now provides further guidance on the approach that the court will take when considering gift applications.

Settled gift

The application related to a young man referred to in the judgment as James who had received substantial damages for clinical negligence. It was an application by his deputy for authority to make a settled gift primarily in favour of James’ parents. The purpose of the gift was to reduce the amount of inheritance tax (IHT) that would otherwise be payable upon James’ death.

James was an only child. He was aged about 20 at the time of the hearing. He had cerebral palsy as a r...

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