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Capacity to Gift Assessments

Capacity to gift is measured against a piece of case law called Re Beaney (1978).

Where a person wishes to make financial and property gifts in their lifetime, a capacity to gift assessment maybe required if they have any symptoms of any cognitive impairment, or if the decision maybe contentious.

Legal test

When assessing for capacity to gift we use the legal test of Re Beaney 1978. It is important to note that the threshold of understanding when assessing a person’s capacity to gift can change depending on the size of gift in relation to the person’s total estate.

A proportionally large gift that would substantially affect the value of an estate would require a degree of understanding as high as that required when assessing Testamentary Capacity.

Assessment process

In order to complete a through assessment we will need confirmation of any diagnosis or impairment that might affect a person’s ability to make a gift. We would also need details of the intended gift, details of the client’s estate and their financial outgoings. If the intended gift amounts to a large proportion of their estate, we will also need a copy of any existing will. Information will be kept strictly confidential and used to develop questions for the assessment and to verify the answers given.

The assessment can take place either by video link or face to face depending on your location. We will guided by you as to the best time to assess and whether you need a supporting person in the assessment. We will also take into consideration any communication needs and adapt to the assessment accordingly. The assessment will take the format of a conversation rather than it being a formal test.


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