Can a Property Be Gifted by an Informal Promise?

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether a property can be gifted by an informal promise

Can a property be informally gifted by a promise during the lifetime of the owner so that the gift only takes effect on her/her death?

The answer is invariably no other than by a Will which provides for the property to be left to the individual to whom it was promised it would be left or because of the rules of intestacy (where there is no valid Will) whereby the individual promised the property, receives it by being the nearest living relative.

Moreover a simple promise is not sufficient to “legalise” the transaction. Under the Law of Property Act 1925 (section 52(1)) the transfer must be by a “deed” which is a written instrument where the parties signatures are witnessed: https://www.legislation.gov.uk/ukpga/Geo5/15-16/20/section/52

However there is an anomaly or exception to this rule

We considered this several years ago. The anomaly we refer to is called a “donatio mortis causa” or “deathbed gifts” which is the approximate English translation. Don’t worry about the Latin. What is being suggested is that a gift can be made in contemplation of death. Our earlier blog as follows refers: https://www.willclaim.com/keeling-v-keeling-failure-deathbed-gift/

It seems to be a rather strange concept, since it postulates a scenario where a casual approach to gifting could well be encouraged, although we are doubtful (see below). However and to be clear, it can be sufficient to lead to the formalising of a transfer of property. In fact the Court of Appeal in Sen v Headley 1991 EWCA Civ 13 found this when ruling on whether property (land and houses) could be transferred in this way. The full text of this case can be read as follows: https://www.bailii.org/ew/cases/EWCA/Civ/1991/13.html

The Court provide a useful snapshot of the requirements for this type of gift to take effect:

If the question whether the subject matter is capable of passing by way of donatio mortis causa is put on one side, the three general requirements for such a gift may be stated very much as they are stated in Snell’s Equity, 29th ed., 380-383. First, the gift must be made in contemplation, although not necessarily in expectation, of impending death. Secondly, the gift must be made upon the condition that it is to be absolute and perfected only on the donor’s death, being revocable until that event occurs and ineffective if it does not. Thirdly, there must be a delivery of the subject matter of the gift, or the essential indicia of title thereto, which amounts to a parting with dominion and not mere physical possession over the subject matter of the gift.

In essence, there are three:
(i) It must be made in contemplation, although not necessarily in expectation of impending death;
(ii) It must be made upon the condition that it is to be absolute and perfected only on the donor’s death, being revocable until that event occurs and ineffective if it does not;
(iii) There must be delivery of the subject matter of the gift, or the essential indicia of title thereto, which amounts to a parting with dominion and not mere physical possession over the subject matter of the gift.

Moreover in relation to property it was determined by the Court of Appeal that the handing over or parting with dominion over the title deeds of the property in question, amounted to the “delivery of the subject matter of the gift”:

The discussion of the third question was largely directed to dispelling the notion that it was necessary for the document delivered to express the terms on which the subject matter of the chose in action was held. This court held, following the opinion of Lord Hardwicke in Ward v. Turner that there had to be a transfer “or something amounting to that”, that delivery must be made of “the essential indicia … of title, possession or production of which entitles the possessor to the money or property purported to be given;” see pp.308 and 311.

It cannot be doubted that title deeds are the essential indicia of title to unregistered land. Moreover, on the facts found by the judge, there was here a constructive delivery of the title deeds of 56, Gordon Road equivalent to an actual handing of them by Mr. Hewett to Mrs. Sen. And it could not be suggested that Mr. Hewett did not part with dominion over the deeds. The two questions which remain to be decided are, first, whether Mr. Hewett parted with dominion over the house; secondly, if he did, whether land is capable of passing by way of a donatio mortis causa.

Why in practice doesn’t this occur more frequently?

The “handing over of the property title deeds” is probably a bit of an issue (!) if one is bringing a case in a will contest or will dispute claim that a property was gifted in this way. Most property is “registered” with the Land Registry: https://www.gov.uk/government/organisations/land-registry

There is unlikely then to be any “original” title to be handed over and if registered, the property title deeds become something of an irrelevance. The transaction process has been centralised if not fully digitised (which might occur soon).

The other more pressing problem is that to establish this claim against a property, one would need to bring a Will dispute, inheritance or Will contest claim and possibly to court. In so-doing, the cost and risk involved may well be disproportionate to the chances of success and the latter considerably reduced by virtue of the informality of the process. In other words, there is unlikely to be compelling, independent and cogent evidence to support the claims made. Invariably the promise was made in private and/or when the individual making the promise was seriously ill, thus raising an automatic question-mark over his/her capacity and whether in fact there was some sort of influence at play.

If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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