making a gift on your deathbed is not as straightforward as it might seem

Challenging Deathbed Gifts

The deathbed gift – known as donatio mortis causa (or ‘a gift given in anticipation of death’) is an aspect of English Law that comes directly from our Roman legal heritage. It covers the situation where someone (the Donor) makes a gift ‘on their deathbed’ – of money or of property – to take effect only on their death. As the courts have recognised,  deathbed gifts are open to abuse by the unscrupulous – so what are the conditions for a deathbed gift – and how easy (or difficult) are they to challenge?

Examples of a valid deathbed gift

True deathbed gifts manage to avoid the protections afforded by the Wills Act 1837 and the Law of Property Act 1925. They effectively allow someone to pass over ownership of money or property, including land, without the usual formalities.

Deeds relating to X farm to be given up at death

The sisters who were given this envelope, marked as such by their uncle, owned a farm. The farm had been mortgaged to the uncle as security for a loan of £1,000. The uncle knew he was dying and handed over the envelope 6 weeks before he died. Although the uncle’s executors sought to enforce the mortgage, the court in this case, Wilkes v Allington [1931] 2 Ch 104 found that the gift was valid.

The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box

In Sen v Headley [1991] Ch 425 the courts considered a deathbed gift of ‘real property’ (the house referred to above). In addition to these words spoken by the Donor, who was in hospital and near death, it transpired that he had, in fact, put the only key to the steel box referred to in Margaret’s bag. This was a valid deathbed gift.

Although it seems clear in these cases that the Donors intended to make the gifts, and these were upheld by the courts, the courts have made it clear that in cases of ‘deathbed gifts’ they will be very careful to scrutinise the facts to make sure there has been no abuse.

Deathbed gifts – the current position

To be a valid deathbed gift, several conditions must be satisfied:

  • The Donor must be contemplating his ‘impending’ death (not death in general – in which case he or she should be thinking about making a proper will) for a specific reason. This could be a disease which has been diagnosed and for which the prognosis has been given. Death does not have to be an inevitable outcome – a ‘deathbed gift’ made in advance of an operation was held to be valid in Re Craven’s Estate [1937] 1 Ch 423.
  • The gift is dependant on the Donor dying for the anticipated reason – before the Donor’s death, he or she can take the gift back – and if the Donor does not die as anticipated, the gift does not take effect
  • The Donor ‘delivers dominion’ over the gift – such as the handing over of documents, as in the Wilkes case, or a key, as in Sen v Headley, but can be tricky to establish.

It is also true to say that the Donor should have ‘mental capacity’ to make the gift, although this has not been incorporated into the list of conditions for a donatio mortis causa/deathbed gift.

Challenging a deathbed gift

The circumstances in which a deathbed gift might be challenged are varied. Depending on the nature of the gift, a valid deathbed gift can reduce the Donor’s estate significantly – even reducing to nothing the value of property to pass under a will or the laws of intestacy. The grounds on which someone might challenge a deathbed gift could include the following:

  • The Donor was not contemplating his ‘impending death’ for a specific reason when he made the gift

Case law suggests that a gift made by an elderly Donor who is not suffering any specific illness or disease or has no definitive prognosis in relation to life expectancy would not be made in contemplation of death for these purposes. In Kenneth Paul King v The Chiltern Dog Rescue, Redwings Horse Sanctuary [2015] EWCA Civ 581 although elderly, the donor was not ill or about to undergo an operation or dangerous journey. She had not visited the doctor for some time. The Court of Appeal found that in those circumstances, she could not have been contemplating her impending death for a specific reason, only death ‘in general’

  • The Donor was trying to make a will rather than a gift that would fall outside the will

As mentioned, because a deathbed gift falls outside the protections of the Wills Act, the courts must be satisfied that the Donor was intending to make a gift, rather than creating a will. Although there are very specific circumstances in which an oral will is permitted, for the most part, a will must be executed in accordance with the formalities under the Wills Act. Again, in Kenneth Paul King, the conversations that the claimant relied upon were considered by the Court of Appeal to reflect ‘testamentary intent’ rather than the making of a deathbed gift. As such the donor could have contacted her solicitors to make a new will.

Although there is a line of case law which upholds the principle of donatio mortis causa – the deathbed gift – it seems clear that the circumstances in which this will continue to be the case are quite limited. The judgment in Kenneth Paul King seems to have introduced an added rigour to the approach to be applied in these cases, and we anticipate that it will be harder to rely on a ‘deathbed gift’ in future.