Gifts that have been made in contemplation

The position in relation to Agatha is relatively straight forward. She has made several gifts that may be contrary to her will; however, we have to consider the dispositions and gifts that have been made in contemplation, or we will argue, of her death.

In general, a gift that has been made by an individual in contemplation of their personal death has not been fully made inter vivos nor testamentary (Re Beaumont, Beaumont v Ewbank) [1] . Such gifts, therefore, need to be demonstrably made directly in contemplation of the death of the individual making the gift itself. Furthermore, it needs to be demonstrated that such gift is capable of being recoverable by the donor if the death does not occur and, as an additional twist in the tail, considered as being invalid if the done dies before the gift can occur (Sen v Headley) [2] .

The simple aspect of appreciating the gifts that have been made is quite simple, a gift mortis causa is, in effect, a legacy that has been made prior to the point of death but is only a gift on survivorship (Tate v Hilbert) [3] ; although no special evidential rules will apply to a gift of this kind – the gift merely witnessed as a result of the done themselves (Re Richards, Jones v Rebbeck) [4] .

Naturally there are expectations in relation to whether a gift has been appropriately made and the tests established are appropriate given Agatha’s position and the gifts she has made in contemplation of her death (Sen v Headley) [5] . Essentially the gifts must be delivered to the done, or an agent of the done, with an effective transfer being made in full or in part (Re Wasserberg,) [6] . Mere intent to transfer a gift or to make a gift is irrelevant in the circumstances. Appreciating, however, that the actual transfer and “giving" may not be made by the donor themselves but by another party on their behalf. This does cause a few issues in relation to the gifts that have been made by Agatha. Therefore, it is essential to note that “it must clearly appear that the delivery was by way of gift, and not merely to take care of the object for the donor" (Wildish v Fowler) [7] . Without the expression or clear donation as a gift and receipt made; the donee merely holds such gift on trust for the benefit of himself or of that of another person (Blount v Burrow) [8] . Again, consideration needs to be given as to whether there is a clear intention for there to be a trust or whether there was an intention for the gift to be made and given appropriately (Farquharson v Cave) [9] .

Once established as to whether an appropriate gift has in essence been made; title to such gift needs to be established. A gift mortis causa is incapable of being compelte unti such time as the donor is, technically, dead (Duffield v Elwes) [10] . In essence the donee holds the gift on trust until the donor has, for want of a phrase, expired. From this perspective, upon the death of the donor, the gift mortis causa does not vest in the personal representatives of the donor and, therefore, there is no action and / or requirement for the personal representatives to undertake any real task to transfer the property so gifted to the donee (Duffield v Elwes) [11] .

However, if the property forming the subject matter of the gift mortis causa has not been fully transferred to the donee by the time of the donor’s death he does have the ability to call on the donor’s personal representatives to make good the gift and, where possible, provide good title to the gift itself (Cosnahan v Grice) [12] . It follows, therefore, that where there has been a good gift mortis causa which has not been fully vested in the donee; a general trust will arise for the benefit of the donee which would not operate to sit within the Statute of Frauds [13] . As a consequence the donee would be entitled to make application to the court on an equitable basis making a request for the title to the goods to vest in the donee in equity and for the court to perfect his title. Until such time as this occurs, title to the gift would lend itself in the name of the donor and, therefore, the personal representatives of the donor until such time as the gift could be perfected (Duffield v Elwes) [14] . If this were the case, then the gift will be considered as being a gift inter vivos and not a gift mortis causa (Tate v Hilbert) [15] .

Examining the law further before providing our advice, where chattels have been gifted or where the subject matter forming the basis of the gift is too large to consider being passed and, therefore, antecedent delivery is more appropriate, the actual moment of the making of the gift is to be considered as the gift itself (Re Weston,) [16] . However, where the passing of a gift can be made by means of passing a different commodity, for example a key; the delivery of the key would constitute the delivery of the gift itself (e Mulroy, M'Andrew v Mulroy) [17] . Registration of the gift is relatively irrelevant provided that there is clear intention of the gift being made. One has to establish whether there was an appropriate requirement for the gift to pass and an intention, despite registration, for the gift to be made to the donee by the donor. Contrasted against the passing of an item that merely resembles the gift but not actually forming the substance part of the gift would not signify intent or signify that the gift was being made (Ward v Turner) [18] . Effectively, in the instances, for example, of property, the passing of a key would symbolise the passing of the property itself and would demonstrate true and good intention for the gift to be valid outside of any other express obligation and / or right. There would be a positive obligation, therefore, placed on the personal representatives of the donor to ensure that good title would then vest in the donee of the gift (Birch v Treasury Solicitor) [19] .

Choses in action, however, are somewhat different when considered as gifts mortis causa. Delivery is necessary unless there is a requirement for a formal transfer to the donee. Yet delivery of a document that would provide the chose in action to be transferred would demonstrate the right to the chose in action itself (Duckworth v Lee) [20] . Therefore where there has been a desired transfer of shares to the donee by the donor and yet the appropriate stock transfer form has not been signed or registered the mere signing of the form by the donor and the passing of the share certificate would vest good title to the gift pending registration. Such gift would not be void for lack of registration (Birch v Treasury Solicitor) [21] .

Applying the law, therefore, and providing the appropriate advice to Stephanie in relation to each gift mortis causa that has been made we can comment as follows.

The gift of the house to Bertie. The passing of the keys to Bertie, but not only the keys to the house itself, the keys to the safety deposit box where the title deeds to the property is held would constitute a valid gift mortis causa being made by Agatha that would not be worthy of challenge. There is a need for the property to now be registered as a first registration would be triggered by the transfer of the property from Agatha to Bertie; however, this would be a requirement on the part of the personal representatives of Agatha to ensure that the title to the gift is good and valid. The gift, therefore, standing as a gift capable of being a good gift mortis causa (Sen v Headley) [22] as the donor has parted with dominion over the title deeds and the land in question.

The gift of £500 to Stephanie. The cash that has been paid over to Stephanie would be considered, in the grand scheme of things, as a loan with an obligation to repay. This is a chose in action for Agatha. The loan has been written off by Agatha with no requirement for the monies to be repaid to the estate. For these purposes, the gift would succeed and not fail (Re Beaumont,) [23] .

The gift of shares to Harold. These are capable of being transferred as evidence of the transfer has been made. Due to the fact that the stock transfer form has not been forwarded to the company for registration pending stamping is irrelevant as the gift would be valid in any event. The transfer would be considered as lost but does not call into question the ability of the personal representatives to make good to title (sourced: Hanbury and Martin: Modern Equity (17th ed., by Dr J. Martin: Sweet & Maxwell, 2005) at 199 Birch v Treasury Solicitor [1951] Ch 298, [1950] 2 All ER 1198, CA).

The gift of £50,000 this cannot really be considered as being a gift mortis causa. Moreover this is a request to establish a trust for the benefit of certain individuals. Therefore, the appropriate trust is evidence of the transfer of the property itself. Although not strictly a gift and falling outside of the mortis causa rules; the trust would still be valid provided intent to create the trust could be established. As this is clear, there would be little concern as to calling the settlement into question (I (1853) 17 Beav 121).

What Stephanie must also appreciate is that the gifts cannot be extinguished by the will of Agatha irrespective of its content (see Hanbury and Martin: Modern Equity (17th ed., by Dr J. Martin: Sweet & Maxwell, 2005) at 201: Jones v Selby (1710) 2 Eq Cas Abr 573, Pre Ch 300). Furthermore, it must also be appreciated that the gifts that have been made are also subject to inheritance tax in a similar manner as gifts inter vivos (Inheritance Tax Act 1984 ss 1, 2(1))