Differences Between Gift and Will, Problematic Cases

"Valyuta.az presents an article by lawyer Qasım Q. Shaliyev, a member of the Bar Association of the Republic of Azerbaijan, in the 'Legal District' section titled 'Gift or Will'.

Gift or Will?

Giving my house to my son or daughter...

Since ancient times, people have worked to ensure a decent life for their families and loved ones. In daily life, they transfer their assets, valuables, and wealth to others without compensation, intending to improve their well-being.

When a family member gives a valuable gift to another, it is done without expecting financial return, purely out of moral motivation. This strengthens family bonds and fosters healthy relationships.

One of the fundamental rights of ownership is the ability to freely dispose of one's property. According to the Constitution, no one can be deprived of their property without a court decision.

However, social relations are complex, and people’s expectations are often unmet, leading to legal disputes.

In legal practice, cases often arise where a person gifts a property to their grandchild under the condition of care, only to later find out that the house has been put up for sale. Or someone intends to make a will in favor of their son, but later discovers that the ownership has already been transferred.

Key Aspects of Gifting Property

According to the law, gifting is the act of transferring property to another person without compensation. Generally, the recipient is not obliged to fulfill any conditions unless they were explicitly agreed upon in advance.

For real estate gifts, a notarized contract is required. If no conditions are specified in the contract, the recipient is not legally bound to follow any verbal agreements, which often leads to disputes.

A gift can be revoked if the recipient commits a crime against the giver or their close relatives, grossly violates family obligations, or fails to fulfill any conditions attached to the gift. However, this right can only be exercised within one year from the moment the reason for revocation is discovered.

Key Aspects of a Will

Unlike gifting, a will takes effect only after the testator's death. A will must be personally drafted by the testator and cannot be made through a representative. The testator has the right to exclude any legal heirs from the inheritance without explanation.

A will can be either notarized or written in a simple form. If notarized, it must be signed in the presence of two witnesses, but the heirs themselves and their close relatives cannot act as witnesses.

Additionally, notaries and witnesses are required to keep the will confidential until the testator's death. Only after their passing is the will revealed to the interested parties.

Legal Advice: To avoid future legal disputes, it is highly recommended to properly document any transfer of assets in advance with legal assistance.