chapter  8
12 Pages

Capacity to make a lifetime gift

ByTracey Ryan-Morgan, Alex Troup

This chapter focuses on the capacity to make a lifetime gift. The common law test for capacity to make a lifetime gift is set out in Re Beaney. In the case of a contract, a deed made for consideration or a gift inter vivos, whether by deed or otherwise, the degree required varies with the circumstances of the transaction. If the donor makes a series of gifts over a relatively short period of time, then the Re Beaney test should be applied to the course of conduct as a whole, rather than to the individual gifts. Where a person lacks capacity to make a gift, an attorney under a Lasting Power of Attorney or a deputy appointed by the Court of Protection may make gifts on their behalf, albeit that their powers to do so are strictly limited. The chapter provides some case studies about the capacity to make a lifetime gift.