How to Notarise a Deed of Gift in Australia

To notarise a deed of gift, the donor signs the final, unsigned deed in front of a notary, who checks identity, understanding and free will and then adds a notarial certificate. For use overseas, DFAT then apostilles or authenticates it. Before any of that, have the deed drafted or approved by a lawyer where the property is.

Key takeaways

• A deed of gift records that someone is giving something away, with nothing in return. It is a deed because a bare promise to give is generally not enforceable.
• For land, shares or money in another country, the law of that country decides the form. An Australian template is often refused.
• A completed gift is usually very hard to undo, and it can have tax and benefits consequences. See a solicitor, and an accountant, before you sign.
• The notary checks identity, capacity and absence of pressure, may see the donor alone, and can decline.
• The notary witnesses the signing. The notary does not confirm the gift is valid; that is a legal question.

Who usually needs one notarised

People looking to notarise a deed of gift in Australia are usually in one of a few situations. Parents here are helping a child buy a home abroad and the lender wants the gift documented. Someone owns land, a flat or shares in the country they came from and is transferring it to a relative who still lives there. A donor is giving money or a collection to an overseas institution that wants the gift recorded formally. Occasionally a gift of Australian property is being documented for a foreign tax or immigration authority.

In each case the notary's role is the same and fairly narrow: to attend the signing and certify, in a form a foreign authority recognises, who signed and that they did so knowingly and freely. Almost everything that makes a gift work or fail happens before the notary appointment.

Get advice before you sign

A completed gift is generally very hard to undo. Once the deed is signed and the property transferred, changing your mind is not usually an option, even between family members and even if circumstances change.

Gifts also carry consequences that are not obvious at the kitchen table. There may be tax consequences for the giver although no money changes hands. Gifts can affect means-tested payments, because Services Australia applies its own gifting rules. There may be stamp duty or transfer duty, and there may be foreign exchange, reporting or tax rules in the country receiving the gift. None of these is something a notary advises on. For anything significant, see a solicitor, and an accountant where tax is involved, before the deed is drafted, not after it is signed.

Why a gift is documented as a deed

A promise to give something, with nothing given in return, is generally not enforceable as a contract, because a contract needs something given in exchange. A deed can be enforceable without that exchange, which is why gifts are recorded as deeds rather than as letters or emails.

A deed has its own execution formalities: how it must be signed, whether it must be witnessed and by whom, and how a company signs one. In Australia those formalities are set by the law of each state and territory, and they are not identical. If the deed is for use in Australia, the solicitor who drafts it will make sure it is executed correctly for the relevant state or territory, and a notary may not be needed at all.

The law of the place where the property is decides the form

This is the point specific to a deed of gift used overseas. If you are giving land, a building, shares or other property located in another country, the deed must satisfy the law of that country, not Australian law.

Many jurisdictions require a gift of land to be in a prescribed local form, often in the local language, to be registered with a local land or property office, and to have local duty assessed and paid. Some set a time limit for registration that starts when the deed is signed. An Australian template, however carefully drafted, will often be refused outright, and a refusal can mean signing, notarising and legalising the whole thing again.

So the order matters.

1. Ask a lawyer in the country where the property is to prepare the deed, or to confirm the required wording, language, number of originals and signing formalities.
2. Settle the tax and benefits questions here with a solicitor or accountant, before anything is signed.
3. Ask whether the recipient must sign, and where and when.
4. Get the final deed, unsigned, with any translation the destination requires.
5. Book the notary to attend the signing.
6. Send it to DFAT for an apostille or authentication, then to the embassy if the country is outside the Hague Apostille Convention.
7. Send the originals abroad for registration, leaving time for any deadline.

The same applies to a gift of money for a home deposit abroad. The overseas lender may have its own gift letter or declaration and may want it signed in a particular way. Ask for their form rather than drafting your own. If you also need someone abroad to handle the registration for you, a separate power of attorney may be needed; see powers of attorney and legal declarations.

Some countries' consulates in Australia can witness documents for use in their own country. Where that is available and the destination accepts it, it can be an alternative to a notary plus DFAT. Ask the lawyer abroad which route that country's land office prefers.

Why the notary may want to see the donor alone

Gifts from older people to family members are among the transactions most closely scrutinised for undue influence, and they are where disputes arise years later, often between siblings who were not told. A notary attending the signing of a deed of gift is satisfying themselves of three things, and can decline if any is in doubt.

1. Identity, from photo identification whose details are recorded.
2. Capacity: that the donor understands what they are giving, to whom, and that it is permanent.
3. Absence of pressure: that the donor is acting freely and not at someone else's direction.

That is why a notary may ask the person receiving the gift to wait outside while the donor signs, and why any interpreter should be independent rather than a relative who benefits. It is not a sign of suspicion. It is the part of the appointment that makes the notarial certificate worth having. How a notary checks capacity and duress explains these checks in more detail.

If the donor's capacity may be questioned later, for example because of age or illness, raise it with the solicitor first. A solicitor may suggest steps, such as a medical opinion, that a notary cannot provide.

When the recipient must sign too

Some jurisdictions require the recipient to accept the gift in the deed itself, or in a separate acceptance. If the recipient is overseas, they may sign in their own country before a local notary or official, with the two signed parts combined afterwards. Agree the mechanics with the lawyer drafting the deed before either party signs, because the order and form of signing can matter to the land office.

What to bring to the notary

• The deed, unsigned, in its final form, with any translation the destination requires. A deed signed at home must be signed again in front of the notary.
• Photo identification for each person signing, preferably a passport, in the name used in the deed.
• Evidence of ownership of the property, if the deed or the destination asks for it.
• Evidence of authority to sign, if a company or trust is the donor.
• The number of signed originals the destination requires, and the lawyer's instructions.

Question	Who answers it
Is the deed in the right form for the property?	A lawyer where the property is
Will the gift affect tax or payments here?	A solicitor or accountant in Australia
Did the donor sign knowingly and freely?	The notary, at the signing
Is the notary's signature genuine?	DFAT, by apostille or authentication
Is the gift registered and valid there?	The land office or authority abroad

Apostille or legalisation

A signed deed of gift is a private document, so DFAT will act on it only once a notary has notarised it. DFAT then issues an apostille, a certificate confirming the notary's signature and seal, for a country in the Hague Apostille Convention, or an authentication certificate for other countries, which that country's embassy or consulate then legalises. Neither confirms that the gift is valid. Membership changes, so check the destination on the HCCH status table on the day. If a registration deadline applies abroad, build the DFAT and any embassy step into it. Apostille and authentication explains the DFAT stage.

A Justice of the Peace cannot fill this role. A JP's attestation is not recognised overseas and cannot be apostilled. For a deed used only in Australia, who may witness it depends on state or territory law, which your solicitor will explain.

Here is an illustration, not a real case

A retired couple in Sydney own a small apartment in the city where they grew up and want to give it to their daughter, who lives there. Their first draft was an Australian template from the internet. Instead, a lawyer in that country prepares the gift deed in the local language with an English translation, tells them the land office wants two originals, and says the daughter will sign her acceptance there. Their accountant in Sydney confirms the Australian tax position, and they ask Services Australia how the gift affects their pension. At the notary, the daughter's husband, who has come along, is asked to wait outside while each of them signs. DFAT authenticates the notary's certificate, the embassy legalises it, and the originals go abroad for registration.

In short

For property overseas, the deed comes from a lawyer in that country, the tax and benefits questions are settled here, and only then does the donor sign before a notary. The notary checks identity, understanding and free will, not validity. DFAT then apostilles or authenticates the notary's certificate. For a gift of land, see also property title deeds and a notary, and for selling rather than giving, selling property overseas.

People also search for

• How is a property title deed notarised?
• What documents do I need to sell property overseas?
• Can a trust deed be notarised for overseas use?
• How does an international power of attorney work?
• How does a notary check capacity and duress?
• How do I claim an inheritance overseas?

Have a deed of gift from a lawyer abroad? Send us the draft and their instructions, and we will explain each step before you book.