Problem over lifetime gifts

When someone dies there are more arguments about personal possessions than anything else.  Sometimes we care a lot about possessions, out of proportion to their value.  There are misunderstandings, promises made to more than one person by the deceased, and claims that items have been given away in the deceased person’s lifetime.

Because a personal possession can be given away informally, without any paperwork, it is often hard to get clear evidence as to who actually owns it.  A recent high profile case came about the estate of pop musician Gerry Rafferty shows the sort of problems that arise.

The girlfriend of Gerry Rafferty was recently ordered to hand back to his estate three guitars, a Steinway piano and other items she said he gave her before he died. His executors disputed this and won.

The dispute ended up in the High Court, and Mr Rafferty’s girlfriend Enza Fuschini ended up with a legal bill of £75,000.

Mr Rafferty had not included Ms Fuschini in his Will. She claimed that he had given her some of these items in the months before he died, and that he had bought others which they then owned jointly. Her difficulty was proving this.  Often people will want to give jewellery, chattels and other personal items to family and friends in their later years, wishing to see their family and friends wearing and enjoying these items, but it is rare for someone to sign a note, or better still a deed, stating what he or she has given to whom.

Unfortunately for Ms Fuschini the Court found against her. The Judge decided that (1) there was no contemporaneous evidence of the alleged gifts, whether written or verbal and (2) Ms Fuschini had not mentioned the alleged gifts until after Mr Rafferty had died, even though he had asked for her to return some of the items and had told his executors that he had not made the alleged gifts.

Fortunately for his estate, the items in dispute were sufficiently valuable to warrant pursuing the case to the High Court, but that will rarely be the case.

On the other hand, what if Mr Rafferty had intended to give these items to Ms Fuschini, and perhaps changed his mind later on? How could Ms Fuschini have protected herself, or reduced the risk of these gifts being challenged?

Ideally, she would have asked Mr Rafferty to sign a deed, to be witnessed by a solicitor or, if he was in poor health, a doctor. Alternatively, it would have helped her case in Court if she had been open and upfront about the gifts during Mr Rafferty’s lifetime, particularly when he asked for these to be returned.