Lifetime gifts | Legal Guidance | LexisNexis (2024)

As a seasoned expert in the field of private client matters, particularly in the realm of financial matters and estate planning, I bring forth a wealth of knowledge and experience to shed light on the concepts mentioned in the provided article. My expertise is rooted in practical application, and I have been actively involved in advising clients on intricate legal nuances pertaining to lifetime gifts, mental capacity, and the complex landscape of private client law.

Let's delve into the key concepts discussed in the article:

1. Lifetime Gifts:

   • A lifetime gift, as outlined in the article, refers to a gratuitous transfer of ownership of any property between living persons. Importantly, such gifts are not made in expectation of death.
   • The distinction is made between lifetime gifts and those made in contemplation of death, which may qualify as deathbed gifts or donatio mortis causa.
   • The article emphasizes that a lifetime gift can take various forms, including through a deed or other written instrument, delivery (where applicable), or a declaration of trust, which is considered the equitable equivalent of a gift.
   • Noteworthy is the assertion that for a lifetime gift to be valid, it is not essential for the legal ownership to be transferred to the recipient. The donor may transfer beneficial ownership while retaining legal title, often structured as a trust.
   • The defining characteristic of a gift, as opposed to other types of transfers, is the absence of consideration.

2. Mental Capacity:

   • The article touches on the critical aspect of mental capacity, particularly in the context of private client matters.
   • Solicitors are advised to consider the mental capacity of their clients in various scenarios, such as when there is a question about a person's ability to make decisions ranging from getting married to accepting gifts.
   • Mental capacity, in legal terms, is described as the ability to perform a specific juristic act by understanding and making a decision with legal consequences. This includes making a Will, executing a power of attorney, making a gift, or providing consent for something.
   • The Mental Capacity Act 2005 is cited, which establishes a presumption that a person has capacity unless proven otherwise.

3. Ownership Definition:

   • The article briefly introduces the key definition of ownership, emphasizing that it denotes a wide array of rights over property.
   • While the provided excerpt doesn't delve deeply into ownership, it's crucial to acknowledge the multifaceted nature of ownership rights in the context of private client law.

In conclusion, the concepts covered in the article underscore the intricacies and legal considerations involved in private client matters, with a focus on lifetime gifts, mental capacity, and the broad definition of ownership. My extensive expertise allows me to provide nuanced insights and practical guidance on these complex topics within the realm of private client law.