What are “deathbed gifts”?

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A deathbed gift, or donation mortis causa, is an alternative way in which a person can dispose of their estate, as opposed to a valid Will or the intestacy rules. With over 100,000 confirmed COVID-19 related deaths in the UK, will we see an increase in deathbed gifts as an alternative way of fulfilling testamentary wishes?

The law

The requirements of a deathbed were set out by the Court of Appeal in the case of Sen v Headley [1991]. In order to be valid, the donation mortis causa must satisfy three conditions:

1. The gift must be made in contemplation of the donor’s impending death.

The donor must reasonably believe that his death is in the near future (from a known cause) and that he is not merely thinking about death. For example, had the donor suffered an accident and believed his injuries may prove fatal or are they suffering from a terminal illness?

There is no specific period of time which the court regards as the ‘near future’. It may be that if the gift is made a few days before death it could be acceptable, but it would seem less likely so if the gift is made weeks/months before the donor’s death. As can be expected in this discretionary, fact-driven area of law, there are always anomalies. In the case of Vallee v Birchwood [2013], there was a four-month interval between the gift being made and the donor’s death: the gift was upheld by the court.

2. The gift must be conditional upon death

A valid donatio mortis causa is contingent upon death. If the donor recovers, the property reverts to them. The donor may change his mind and revoke the donation mortis causa at any time up to death by reclaiming possession or control of the subject matter of the gift, or by notifying the donee of the revocation in some other way.

3. The donor must transfer (or deliver) the gift to the donee

In order to satisfy the third requirement for the valid deathbed gift, the donor must actually transfer the subject matter of the gift to the donee. With a piece of jewellery, the donor can physically hand the jewellery to the done. With a car, the Court has determined that the handing over of keys is sufficient.

This is plainly more problematic with a house and prior to the case of Sen v Headley [1991], it was not thought that a gift of land could be facilitated by way of a donatio mortis causa. In this case, the deceased put the keys to his house in Mrs Sen’s handbag and told her the location of his Deeds. The Court held both acts to satisfy the third requirement.

Considerations

It is likely that claim for a donatio mortis causa will be defended by the aggrieved beneficiaries of the will or intestacy.

The case law in this area is sparse, the decisions are very fact-specific and there are rarely any witnesses to the actual making of the gift other than the donee.

The court commented in King v The Chiltern Dog Rescue [2015] that “it is easy for unscrupulous treasure hunters to adjust their recollections in order to gain huge rewards”.

There are also other considerations such as the capacity of the donor at the time of the donation mortis causa: was the donor taking any medication which could affect his judgment? Did the donee misinterpret the gift in any way? Did the donee unduly influence the donor? Accordingly, these types of cases obtain the strictest scrutiny from the court to ensure that entirely fabricated scenarios do not pass off as valid deathbed gifts.

Summary

The government has adapted to the extraordinary times in which we find ourselves by allowing for the remote witnessing of Wills, but we believe that instances of donatio mortis causa may increase, as no doubt will disputes over Wills and Inheritance.

Further information

If you have any queries relating to a disputed will, a deceased’s person’s estate or inheritance, please contact either Polly Stephenson (polly.stephenson@ashtonslegal.co.uk / 01473 261356) or Joanna Baker (joanna.baker@ashtonslegal.co.uk / 01284 727010).

Please click here to see a related article on remote witnessing of wills.


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