Wills and Deeds of Gift

What is a will?

A will is a document which purports to transfer property from the owner to others after the death of the owner.

A will indicates in no uncertain terms how the property of a person should be distributed after his death.{{more}} It is the final will that counts. It is not unusual for a person to make more than one will, but only the last will would be considered by the Court so the date on the will is important. If you make a will it will allow your property to be transferred in accordance with your wishes and in a non contentious manner. If you have omitted any item that you own when you made your will or if you acquire property after you made your will you could make a codicil to convey these. The codicil must be read alongside your original will. It would save you the expenses of drafting another will. A will allows you to continue to hold on to your property during your lifetime.

What is a Deed of Gift?

A deed of gift is a document recording the transfer of property to another by the owner of that property without costs being paid by the person who receives it.

An irreversible document

You cannot cancel a deed of gift at will. A deed of gift represents a final and irreversible action. Once you have transferred your land to another it cannot be returned to you if for some reasons you have need for it at a later date. The only exception to the rule is where undue influence was used by a person to force you to transfer your property to him. Consideration could also be given where the transfer was unconscionable.

The elderly are especially vulnerable. They could be persuaded to give up their property with the promise that they would be taken care of for the rest of their lives. Sometimes the person who makes the promise fails to live up to expectation causing the victim to regret his/her actions. The law would not save you from the consequences of your mistake but will save you if you were victimized by others. Lawyers who draft deeds of gift have a duty to tell the donor, including the mentally ill and persons with low level of education, to consult a lawyer of their own before disposing of property that they own by a deed of gift.

Exemption

Transfer of land by deed of gift affords the parties stamp duty exemption. This, however, applies to certain categories of relatives. These are spouses, parents, children, siblings, grand-children, and great-grand-children, great-great-grand-children and great-great-great grand-children. This is a way of assisting easy transfer of property within the family circle. The recipient has to pay a small registration fee and the legal fees for preparation of the documents. Not everyone is eligible for the exemption. Persons such as nephews, nieces, cousins, guardians and friends who receive gift of land or property must pay the relevant stamp duty.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com