Property can either be gifted away or sold in one’s lifetime. A physical item like jewellery and other chattels can be gifted by delivery, by handing it over to the donee. A Deed of Gift could be drawn up, properly witnessed to prove evidence of the gift and avoid any dispute that the gift was intended.
Invalid or Impaired Gift
In 2001, the executors of the estate of Mrs Helen Hing Oh, who suffered from Alzheimer’s disease and had died childless at 88, sued her nephew Sherman Wong for the return of $5.3 million. The executors alleged that Mrs Oh made the “gift” in 1994 under her nephew’s undue influence and that she made it when her memory and judgement was impaired. A medical report showed that as early as 1992, she was not in a position to manage her own affairs because of her illness. The nephew also refused to arrange for the “gift” to be confirmed by an independent witness or doctor as advised. The Court ruled in favour of the estate.
Transfer of Land
Transfer of land involves observing certain formalities prescribed under the law for validity.
Formalities Required for Transfer of Land
Transfer of land requires formal transfer or conveyance of the title to the land and registration with the Registry of Land Titles for validity. In Singapore, stamp duties approximately at 3% of the land valuation or purchase consideration are payable. Depending on the status of the purchaser, the purchase of residential property also attracts Additional Buyer’s Stamp Duties at the rates from 7% to 15%. There are however, restrictions to the transfer of land to foreigners. See the Residential Property Act.
Other Forms of Gifts other than Lifetime Gifts
- Gifts can be made by will or
- Gift by way of donation mortis causa
The doctrine behind the donation mortis causa (Latin term meaning “gift on the occasion of death”) concerns a gift made during the life of the donor which is conditional upon, and takes effect upon death. It contemplates a “death-bed” gift; someone dying and breathing his last words and leaving his property to some person. It is separate and distinct from both a normal inter vivos gift, under which title passes immediately to the transferee, and from a testamentary gift, which takes effect under the provisions of a properly executed will. Although this mode of giving is somewhat archaic and not something typically encountered, a modern application of the concept is illustrated below.
Reversal of a Gift
In Koh Cheong Heng v Ho Yee Fong  SGHC 48, the donation mortis causa gift doctrine was invoked in a HDB property re-transfer. The couple concerned did not have any children. Retiree Koh Cheong Heng, fearing he did not have long to live, made his wife the joint tenant of his HDB flat so she would have a home after he was gone. But his health unexpectedly improved while his wife suffered head injuries in a fall, leaving her with memory loss. Mr Koh, 69, was worried that in the event he passed away before his wife, her relatives, rather than his, would end up inheriting the property because she would not be able to make a will. In such circumstances, on his wife’s death, the property will be distributed in accordance with the Intestate Succession Act and this means it will be shared equally amongst the children of her deceased brothers and sisters. Mr Koh was not happy about such an outcome as he had furnished the entire purchase price of the property himself and had transferred an interest in the property to the defendant in order to provide for her. He had not intended to benefit her relatives since he had relatives of his own. So, he tried to cancel the gift and make himself sole owner again. But there was one major hurdle – it was unclear if HBD rules allowed re-transfers of this nature. In a landmark judgement, the High Court approved the re-transfer under the doctrine. In summary, Mr Koh made the gift of the property conditional upon his death taking place but as he had instead survived, he could renege on the gift.
Transfers of Intangible Property
For intangibles like shares, share transfers require execution by the transferor of shares in a deed of transfer. The transfer must be registered and new share certificates issued in the name of the transferee. The register of members should be updated to record the new transferee as shareholder in the company’s statutory books.
Life Insurance policies can be assigned under the Policies of Assurance Act. Assignments can be absolute or conditional and the legal effects are different (see para 13.7). Intellectual property such as trademarks and patents can be transferred by assignments. Choses in action like Debts, Bonds, Bills of Exchange and other negotiable securities are also assignable.
For assignments to be valid, certain formalities have to be observed and appropriate notice given.
Transfer of Unique Assets
Other assets such as ships, yachts, vessels and aircraft (sometimes regarded as immovables) require special forms of transfer through execution of specialized documents and registration with the Shipping or Aircraft Registries of the country of its origin.
Intermediate Transfer Arrangements
Sometimes for commercial reasons, transfers are made conditional or transferred to intermediaries, usually moneys, to hold and deal with them in a certain manner as agreed. These include:
- Payment of Deposits or Earnest moneys (good faith deposit)
- Stakeholding Arrangement
- Escrow Arrangement
A person, the stakeholder is appointed to have in his/her possession (holding) money or property in which he/she has no interest, right or title, awaiting the outcome of a dispute between two or more claimants to the money or property. The stakeholder has a duty to deliver to the owner or owners the money or assets once the right to legal possession is established by judgement or agreement.
The escrow is usually a tri-partite legal arrangement in which an asset (usually cash, but could apply to real property or other tangible assets) is agreed by the contracting parties to be deposited for safekeeping under the trust or custody arrangement of a neutral third party, the escrow agent. Pending satisfaction or fulfillment of the agreed contingency o condition, the escrow agent is to transfer the asset to the party prescribed by the escrow arrangement.
Other Forms of Property Holdings Arising from Transactions
Briefly, these could include:
- Security Transactions made over assets for purposes of obtaining loans e.g. mortgages, reverse mortgages, charges and other encumbrances on property or the assignment of a life policy by the insured to his banker as collateral for a loan
- Bills of Sale
- Custodian arrangements
There are many ways to transfer one’s property, it can be gifted away or transferred via a will. And knowing the precautions and legal consequences to each transfer is fundamental to distributing wealth properly.