When a person expects to die, their thoughts often turn to those who have helped them most in life. In such circumstances, it is by no means uncommon for quite substantial gifts which take effect on death to be made to friends, carers and others...and for the person’s family to challenge them.
For a ‘gift in anticipation of death’ to be valid, three factors must be present:
- It must be made in contemplation of, but not necessarily in the expectation of, the death of the donor;
- It must be made on the condition that it becomes absolute only when the donor dies and be capable of revocation by the donor prior to death; and
- There has to be a clear indication that title to the item gifted is intended to pass to the donee. Just passing with physical possession is not sufficient.
In a recent case, the adopted daughter of an elderly man visited him at his home in France. In contemplation of his death, he gave her a set of keys to his house and the title deeds, telling her he wished her to have it on his death. He also gave her his photograph album and medals.
He died intestate a few months later. She claimed title to the property as a gift in anticipation of death. The Treasury Solicitor refused her claim and advertised for potential claimants. The man’s brother was located and gave a genealogist his power of attorney to claim the estate.
The matter reached the High Court, which upheld the woman’s right to retain the property as a gift made in contemplation of death.