Deathbed gifts and transfer of property in times of crisis
- Wills, Trusts & Probate
- 18th May 2020
MLP Law are advocates at ensuring our clients’ needs are provided for, including preparing them for events during lifetime as in death, to ensure peace of mind. Given the unprecedented circumstances we find ourselves in, at the time of a global crisis, it is now more important than ever to ensure you are fully prepared […]
By Jane HunterMLP Law
MLP Law are advocates at ensuring our clients’ needs are provided for, including preparing them for events during lifetime as in death, to ensure peace of mind. Given the unprecedented circumstances we find ourselves in, at the time of a global crisis, it is now more important than ever to ensure you are fully prepared and have taken the necessary legal advice. At MLP Law our team of experts are here to talk you through the process, guaranteeing a service which is tailored to your individual needs.
There has been increased focus on Wills and estate planning as more people take time to consider what would happen to their estate if they passed away. However, under the current circumstances it may not be possible for all individuals to undertake full estate planning and Will instructions due to ill health and the rigorous legal requirements which need to be met for a Will to be validly executed. In these circumstances, it may be necessary to view what other options are available to vulnerable individuals who may not have the ability to undertake full estate planning advice and validly execute a Will.
In contrast to the legal formalities of preparing a Will, lifetime gifting and deathbed gifts are less stringent in their requirements to be valid. One thing that individuals may look to, is whether deathbed gifts are effective and transferring property to individuals, as opposed to the formalities of making a gift under a Will.
To make a valid deathbed gift, the donor must have met criteria set out in the earlier case of Keeling v Keeling. The case determined that to be satisfied the deathbed gift is valid the person making the gift must have:
- Contemplated impending death when making the gift;
- Made the gift conditional upon contemplated death; and
- Physically transfer the gift to the recipient
It is important that the individual’s capacity is assessed so that it is clear they fully understand the effect of making a gift on their deathbed and ensuring that the individual intends to make such a gift, without any undue influence from third parties.
Given the confusion over such gifts being made, with the minimal formality at a time where the donor is most vulnerable and near to death, it is advisable that the individual seeks professional advice on how best to deal with any deathbed gifts being considered.
Transfer of Property:
Again, under the current circumstances it may not be possible for someone to execute a valid Will with such strict formalities which must be met together with the in-depth planning sometimes required. Where this is not possible due to individual circumstances, it may be necessary to look at alternative options to ensure your wishes are met following death.
Individuals may look at transferring ownership of a property prior to death as a way of ensuring the property passes to the intended beneficiary(ies). Transferring property prior to death must be done with the advice and guidance of a professional so that various considerations and risks including tax implications can be considered.
Having reviewed the wishes of the individual and discussed the consequences of making the transfer of a property, the transfer can be completed by Deed. The requirements for the execution of a deed are less formal to that of a Will and may mean that individuals are able to ensure that their wishes are met, particularly in the current circumstances.
In the age of social distancing and lockdown of the nation, it is important that individuals get the correct advice and guidance.
How can MLP help me?
If you’re thinking about making or updating your will or require assistance with estate planning needs, please get in touch with our Wills, Trust and Probate solicitors who would be happy to have a chat with you to discuss the best way to do this, whilst following all the guidance and protocol on staying safe during the coronavirus.
About the expert
Stephen is the Owner of MLP Law and leads our Commercial, IP and Dispute Resolution teams which provide advice on all aspects of the law relating to mergers, acquisitions, financing, re-structuring, complex commercial contracts, standard trading terms, share options, shareholder and partnership agreements, commercial dispute resolution, joint venture and partnering arrangements, IT and Technology law, Intellectual Property, EU and competition law, Brexit and GDPR.
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