Keeling v Keeling – the failure of a death bed gift

In a recent blog,we looked at the deathbed gift – or donatio mortis causa. Putting the case law into practise, in Keeling v Keeling, the courts have recently rejected a claim by a brother that his sister made a ‘death bed gift’ to him of her house, at the expense of other relatives.

The Facts of Keeling v Keeling

Stephen and Frank Keeling and Ellen Exler were siblings. Ellen died intestate in 2012. She had suffered a heart attack earlier in 2012 but had not required hospital treatment and had survived for over 6 months following the incident. Stephen and his wife had been involved in Mrs Exler’s care, visiting her regularly and doing shopping for her, but had then insisted that she moved into a care home, leaving behind a substantial property worth £900,000. Mrs Exler died 4 days after the move.

On her death, Stephen took out a grant of letters of administration in respect of his sister’s estate. He also registered the property in his name. He sent his brother, Frank, a cheque for a little over £3,000 as his part of the inheritance claiming that Mrs Exler had handed over the deeds to the house and told him she wanted him and his wife to have it. The claim was brought by the brother, Frank. Under the intestacy rules, Frank, along with the children of a fourth sibling who had already passed away, would have shared the estate.

The judge rejected Stephen Keeling’s claim that the house amounted to a death bed gift (a donatio mortis causa). He found that

• If Mrs Exler had given the house to her brother in the way he claimed, she had done so at around the time of the heart attack in May 2012. The circumstances were such that she could not have made the gift “in contemplation of her death”;
• On the evidence, when Mrs Exler handed the deeds of the property to her brother, he handed them in turn to Mrs Exler’s solicitor, suggesting that she had given him the deeds for safekeeping only. On this basis, it could not be said that the house had been “…parted with, or delivered to the intended recipient in some way…”
• Mrs Exler had been assessed by an old age psychiatrist as lacking capacity to manage her affairs. However, that aside, Mrs Exler’s solicitor had encouraged her to make a will. Although Mrs Exler declined to do so, the fact that she had an opportunity to make a will went some way to defeating a donation mortis causa.

Inconsistent evidence

It’s clear from the reports of the judgment that the judge did not think much of Stephen Keeling’s claim that his sister had given him the property. There were inconsistencies in his evidence which meant that the judge did not accept that the conversations Stephen Keeling relied on had ever taken place.

Limited role of the death bed gift

Even if the conversations Stephen Keeling gave evidence about had taken place, the judge held that there would be no death bed gift. As already mentioned, the conditions were not fully met, so that the gift was not in contemplation of death, and Mrs Exler had not handed the deeds and keys over as a sign of ownership. She had done so for safekeeping.

As we mentioned in our earlier blog, it seems that donatio mortis causa has a very limited place in modern society. As in this case, upholding a deathbed gift can significantly reduce the size of an estate to the detriment of other beneficiaries. The courts will be scrupulous in their approach to these cases. Potential claimants will need to have very strong evidence to show that all the conditions are met.