Promises and Gifts Before Death

Sometimes a gift made before death can be challenged, and a promise made before death can be enforceable.

It sometimes happens that a person makes a significant gift prior to their death. A beneficiary who receives less, or nothing, as a result, may want to challenge the gift.

There are a number of ways to challenge a gift made before death, including:

Mental Capacity

If a person was not of sound mind when making the gift, the gift can be challenged.

Evidence will need to be produced to show this, and we can advise you on exactly what you will need and how to obtain it.

Undue Influence

If a person made the gift as a result of coercion or pressure from another, then the gift can be challenged.

Again evidence will be needed, and we can advise you on exactly what you will need and how to obtain it.

Attorney acting outside of powers

There are instances where a person has power of attorney over another and makes gifts.

Attorneys only have the power to make small gifts to charity or birthday or seasonal gifts of a similar value to those made by the person concerned when they had capacity.

If more substantial gifts are made, without the approval of the court, they can be challenged.

Promises made before death

In some cases, a promise made by a person before death can be enforceable, even if that promise is not provided for in a will. This is known legally as “proprietary estoppel”.

To establish this type of claim there must be:

Promise

Party A must assure Party B that Party B will obtain a benefit after Party A dies

Reliance

Party B must reasonably rely on Party A’s representation or assurance

Detriment

Party B must incur a detriment as a result of his reliance on Party A’s representation or assurance.

Often, this includes providing care for the person before they die, or spending money on a property.

There are also gifts made shortly before death, known as “deathbed gifts”, or known by the latin term donatio mortis causa. There are four conditions which must exist for a gift to qualify as a deathbed gift and be enforceable:

• Gift must be made when the donor believes he/she is going to die.
• Gift must be made on the condition that the donor dies.
• Donor must part with the gift in some way.
• Gift must be capable of being given away in this manner.

If you have been promised an inheritance, or think you may have received a deathbed gift, but the executors will not recognise it, please get in touch and we may be able to assist.