The owner of the property wants to pass it on to other persons, but does not know what is better to choose: draw up a deed of gist or a will? What are the main differences between them and what are the advantages – read below.
Deed of gift
According to the Civil Code of Ukraine (hereinafter - the Code), under a deed of gift, one party (donor) transfers or undertakes to transfer property (gift) to the other party (donee) free of charge in the future. A gift can be movable things, including money and securities, immovable things, as well as property rights that the donor owns or may have in the future. A contract establishing the donee's obligation to perform any property or non-property action for the benefit of the donor is not a deed of gift. The deed of gift can be concluded on behalf of the donor by their representative. A letter of attorney for the conclusion of the deed of gift, in which the name of the recipient is not specified, is null and void.
Will
A will is a personal disposition of an individual in the event of their death. The right to the will is exercised personally. It is not allowed to execute the will through a representative. The testator can condition the emergence of the right to inheritance from the person designated in the will by the presence of a certain condition, both related and unrelated to their behavior. For example: presence of other heirs, residence in a certain place, birth of a child, education, etc. The testator can oblige the heir to perform certain actions of a non-property nature, in particular regarding the disposal of personal papers, determining the place and form of the burial ritual. It can also oblige the heir to perform certain actions aimed at achieving a socially useful goal.
Differences in the acquisition of ownership
After signing the deed of gift, ownership of the property is immediately transferred. In the case of making a will, the heir acquires ownership rights only after the death of the testator, acceptance and registration of the inheritance.
In accordance with the Code, the contract of donation of immovable property is concluded in writing and is subject to notarization. Also, an agreement on the donation of currency values between individuals for an amount that exceeds fifty times the tax-free minimum income of citizens is concluded in writing and is subject to notarization.
The deed of gift of property rights and the deed of gift with the obligation to transfer the gift in the future must be concluded in writing. In case of non-compliance with the written form, this contract is null and void. The deed of gift of movable things that have a special value is concluded in writing. The transfer of such a thing under a verbal contract is legal, if the court does not establish that the donee took possession of it illegally.
A deed of gift of items for personal use and household purposes can be concluded verbally.
The will is made in writing, indicating the place and time of its making. The will must be personally signed by the testator. If a person cannot personally sign the will, it is signed in accordance with the fourth part of Article 207 of the Code. The will must be certified by a notary public or other officials specified in Articles 1251-1252 of this Code, and during the period of martial law also by Resolution of the Cabinet of Ministers of Ukraine "Some Issues of Notary in Conditions of Martial Law" No. 164 of February 28, 2022.
Conditions for loss of legal effect
The testator has the right to cancel the will at any time and to make a new one at any time. The will that was made later cancels the previous will in whole or in the part in which it contradicts. Each new will cancels the previous one and does not restore the will that the testator made before it. If the new will drawn up by the testator was declared invalid, the validity of the previous will is not restored, except for the cases established by Articles 225 and 231 of this Code. In addition, the testator has the right to make changes to the will at any time. Cancellation of the will, making changes to it is carried out by the testator personally. In order to terminate the deed of gift, there must be valid grounds provided by the Code.
The donor has the right to demand the termination of the deed of gift of real estate or other particularly valuable property, if the donee intentionally committed a criminal offense against the life, health, property of the donor, their parents, spouse or children. If the donee committed intentional murder of the donor, the heirs of the donor have the right to demand the termination of the deed of gift.
Also, the donor has the right to demand the termination of the deed of gift if the donee creates a threat of irreversible loss of the gift, which has a great non-property value for the donor, if as a result of the donee's negligent treatment of a thing of cultural value, this thing may be destroyed or significantly damaged. The donor has the right to demand termination of the deed of gift, if the gift is preserved at the time of making the demand. In case of termination of the deed of gift, the recipient is obliged to return the gift in kind. A one-year statute of limitations applies to demands for termination of the deed of gift.
