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The donation without a notary

A Hand-gift

A hand-gift is “a hand-to-hand donation of tangible movable property or of intangible movable property insofar as the right is incorporated in the title, which is effected by the mere material transfer (traditio) by the donor to the gifted person, who accepts and where there is an intention on the part of the donor to donate (animus donandi) ”.

Since it is a donation, the following validity conditions must be met:

  • Will to donate from the donor (usually a physical person, but it may also be a legal person) (animus donandi);
  • The donation must be immediate and irrevocable;
  • The donee must accept the donation;
  • The donation must be made among the living: both the donation and the acceptance must occur during the lifetime of the donor and endowed;
  • There should be no onerous nature (e.g. it should not be the repayment of a debt).

The difference between a donation and a hand gift lies in the form conditions. After all, a notarial deed must be drawn up with the donation. The hand gift, on the other hand, only assumes a material handover. This makes the hand gift a business contract.

Due to the material handover, the hand gift can therefore only concern tangible movable property or goods whose right is incorporated in the title. We think of: cash, money, furniture, jewelry, art objects, etc…. Registered shares can therefore never be the object of a hand gift.

It happens that after the death of the donor the heirs claim that the donee has “taken away” the goods. And although a writing is not required, it is nevertheless recommended to draw up a written proof of the gift. After all, the rules regarding the evidence are fully applicable.

Since the difference between a donation and a hand gift depends on the formal conditions, it is important to arrange the writing in such a way that it only “establishes the handing over, with the insight to donate the good to the donee and the acceptance by the donee ”. This is called a “pacte adjoint”. The moment when this happens is important. It is announced before delivery and accepted upon receipt.

The written proof or the “pacte adjoint” was usually provided by two registered letters. A first letter originated from the donor and stated the intention to make a donation or confirmed the donation already made. A second letter then contained the donee's response, usually a token of gratitude showing acceptance.

Cassation recently ruled that both documents are only the beginning of evidence. Which must then be supplemented with suspicions.

A document containing these notices at the time of the hand gift may result in nullity. If due to circumstances it turns out that the transfer did not take place (previously), this could lead to  problems.

Preferably, this pact adjoint is sent by registered mail, with the technique of the folded cover so that the postmark is placed on the document itself, from the donor to the donee or vice versa, so that the date can also be proven.

This method is important to prevent the payment of inheritance tax. After all, no inheritance tax has to be paid on donations or hand-gifts three years before the death of the donor. It is therefore important to be able to prove when the hand gift took place. After all, the burden of proof falls on the shoulders of the donee.

If the donor falls ill and there is a risk of death, this pacte adjoint can be registered, as a result of which gift tax is due and thus (higher) inheritance tax can be avoided.

However, the date is also important from a civil law perspective to determine the order of the shortening.

This “pacte adjoint” can also serve to link additional conditions to the hand-gift. Although the donation must be made immediately and irrevocably, conditions can be imposed on the donee, for example the right of return in the event of a pre-death. However, the conditions attached to the gift may not nullify the immediate and irrevocable character of the gift. This may involve some form of limited control. However, usufruct on shares or capital cannot be reserved. Retaining a management mandate over the donated portfolio is one of the options.