Understanding the Law
September 10, 2010
Deeds of gift and wills

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 paying for the land.

What is a will?

A will is a document which proposes to transfer property from the owner to another after the death of the owner.{{more}}

It is important to understand how these two documents work. A will indicates in no uncertain terms how the property of a person should be distributed after his or her death. It is the most recent will that counts. It is not unusual for a person to make more than one will, but only the last will can be probated. 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 you acquire property after you made your will, you could make a Codicil to convey these to the person of your choice. The codicil must be read alongside your original will. It would save you the expenses of drafting another will. These documents allow you to continue to hold on to your property while you are alive, as opposed to a deed of gift.

An irreversible document

A deed of gift represents a final and irreversible action. Once you have transferred your land to another it cannot be returned to you when you realize that you have need for it. However, where a person uses undue influence to force another to transfer property to him, the court could determine that document to be invalid. Elderly persons 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. Lawyers who draft a deed of gift have a duty to tell the donor, including the mentally ill and persons with low levels of education, to consult a lawyer of their own before disposing with their property.

Persons who qualify for 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, mothers, children, siblings, grand children and 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. 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: [email protected]