Why death bed gifts aren’t always upheld

With COVID-19 isolation and lockdown, we have seen a rise in last ditch death bed gifting of assets – but gifting assets on your death bed is not as easy as it sounds. To override an existing will or rules of intestacy where there is no will, a death bed gift must comply with strict requirements to be declared valid.

What is a death bed gift?

When a person who is on their death bed decides to gift an asset, whether this be a car, jewellery, a house, anything, to someone this is called a death bed gift (a donation Mortis Causa, or a DMC).

Martin Holdsworth, founder and director of IDR Law, recently spoke to the Mirror about the legal issues surrounding death bed gifts and why it’s always preferable to have a will in place.

Martin comments: “Deathbed gifts trump existing valid will provisions in relation to the asset gifted – for this reason, the courts have made it very clear that they will only uphold deathbed gifts if they satisfy a series of strict and narrow requirements.

“Even then, as these death bed gifts are often made by those most vulnerable, challenges to their validity on the grounds of lack of mental capacity and undue influence commonly follow.

“I understand entirely why deathbed gifts are attempted in difficult circumstances, but I would always advocate a quickly prepared professional will should be used whenever possible.”

What conditions must a death bed gift meet?

To override the requirements of the Wills Act 1837, by which a will must be validly executed, four conditions of a DMC must be satisfied:

  1. The maker of the will was contemplating their death hen the gift was made
  2. The maker of the death intended the gift would only take effect if and when their death occurred and that otherwise it could be revoked
  3. The maker of the gift delivers the gift to the recipient themselves (by handing over the deeds to a property or keys to a car, for example)
  4. The maker of the gift had the capacity to do so.

Why death bed gifts aren’t always upheld

Lots of uncertainty and arguments surround the above points and, as you can imagine, if a person gives a DMC, the people who would have previously benefitted from any existing will may seek to contest the DMC.

In the case of Davey & Anor v Bailey (2021) the Deceased and his wife (who had passed away only a few months prior to her husband in 2019) had written mirror wills, leaving everything to each other. Upon the death of Mr Bailey, Mrs Bailey’s siblings claimed that the couple had given them DMCs – gifts of cash and passed a metal tin box containing the title deeds to the marital home. The DMCs failed as they didn’t meet all the requirements and, despite the court having real sympathy with the proposed recipients, Mr Bailey’s estate, worth in the region of £1.1 million passed, under the rules of intestacy, to his next of kin: his brother and the children of his sister who had predeceased him.

In the case of Keeling v Keeling (2017) the Deceased died without a will and, under the rules of intestacy the estate was to be shared between her two surviving brothers and the children of a third deceased sibling. One brother applied for letters of administration and transferred the Deceased’s property into his name on the basis that the Deceased had told him she wanted him to have the property upon her death. Unsurprisingly, the other beneficiaries contested this DMC, and the court upheld their claim that it was not a valid death bed gift.

DMCs can be upheld if all requirements are met

For example, in the case of Sen v Headley (1991), the recipient of the gift was a close friend of the Deceased and 3 days before his death she had asked him what would happen to the house upon his death and he stated: ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’  This was judged to be a valid DMC.

The advice of contentious probate specialists

At IDR Law we specialise in inheritance disputes. We realise that, in difficult circumstances, a death bed gift might be the only option where a person is dying and wants to ensure an asset passes to the person they wish to have it, but our advice is to get a professionally prepared will in place wherever possible.

IDR Law is an approachable, boutique firm and the only one in the country dealing solely with inheritance dispute resolution. If you’re a law firm, or an individual who feels they would benefit from our expertise, get in touch here, email us at enquiries@idrlaw.co.uk or call on 01423 637050.

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