Can you make a gift on your deathbed?

It is always best to ensure you have a carefully drafted, and updated Will setting out what you would like to happen to your property and effects when you die. The law protects your decisions in most cases but this can provide some inflexibility in the way your estate is handled. Equally, if there is no Will, the intestacy rules can result in undesirable consequences.

Take, as an example, of the father on his deathbed taking off his cherished wrist watch and handing it to son number 2 saying that, if he dies, he wants that son to have the watch because of the assistance he provided in the time leading up to that point. If the watch is dealt with in the Will in some other way, the father’s wishes, on the face of it, cannot be followed and the watch falls to be dealt with by the Will, which might mean it goes somewhere else.

This might seem like a trivial item, but what if the watch was a Rolex, or a Porsche, or a house? There have been quite a number of cases over the years involving large sums, property and land.

What are Donatio Mortis Causa, or deathbed gifts, and how can they be valid?

In the last 100 years or so the Court has been very cautiously accepting and developing the idea of deathbed gifts being valid gifts, overriding provisions in a Will or the intestacy rules. The legal term for such gifts is Donatio Mortis Causa (DMC), and there are 3 specific requirements for a DMC to be valid in law:

The donor of the gift contemplates his impending death, in the near future and for a specific reason;
The donor makes the gift which will only take effect if and when his contemplated death occurs and, until then, can revoke the gift; and
The donor gives control of the gift to the recipient, for example by handing the key to a safe or the deeds to a house.

Each of these conditions will require the court, if it is asked to intervene, to hear evidence from the parties involved and be satisfied they are met. The Court applies a high threshold when considering these matters.

Whilst they are sometimes referred to as deathbed gifts, as they are in the title of this insight, DMCs do not need to be made only moments before you die, as point 1. sets out above, it is enough that there is a likely death in the near future.

How does the court deal with Donatio Mortis Causa, deathbed gifts?

The recent High Court case of 'Davey & another v Jones & others [2021]' highlights how the Court must deal with these things. In Davey the devoted husband and wife died within months of each other both aged 71. Each made a Will leaving their estate to the other. They had intended to change their Wills but the husband died before this could happen. The effect of this was that the husband’s estate was intestate although there were siblings. The intestacy rules would have seen the estate fall to the husband’s family, leaving nothing for the wife’s family. The estate was valued at around £2m.

The wife’s brother and sister claimed that shortly before the wife died, sizeable gifts were made to them including a house. The Court found that the husband and wife did indeed want to ensure that each of their respective families was taken care of and recorded some of these wishes in a form provided to them by the charity Macmillan about what a will might say. However, the Court had to find that this was not enough. In forming its view, it decided that the husband and wife had not made gifts intending to take effect on their death, but instead intended to record what the will of the survivor would say. The Court also found there was some ambiguity in precisely what was being left to the Claimants in the case. The Claimants placed much reliance on the form provided by Macmillan but the Court was quick to point out that what the Claimants were trying to do was effectively to validate an ineffective Will. Finally, it was also held that, at the relevant time, the husband had not contemplated his own death.

In rejecting the Claimants’ claims, the Court acknowledged this was a difficult case because it was clear the husband and wife wanted to be fair to each of their respective families, but events got in the way. To do fairness in this case would be to significantly alter the legal principle developed over time.