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Deathbed Gifts Without a Will - Are They Valid?

on Monday, 06 September 2021.

COVID-19 has brought into sharp focus for those who do not have their legal affairs in order, the risk of suddenly falling ill and tragically dying without their chosen beneficiaries inheriting, because they have not prepared a Will.

However, a recent case has cast light on a legal lifeline, known colloquially as 'deathbed gifts', legally-termed Donationes Mortis Causa (DMCs). These can enable a person to legally make gifts in contemplation of their death without a Will.

A Sad Story

In Davey v Bailey, Alan and Margaret, a devoted married couple, died within months of each other. They had no children and left Wills which were simple, but not well-thought through. They both left everything to each other with no provisions on who was to inherit from the survivor. Margaret died first and Alan visited his solicitor to draw up a new Will. However, it was not completed before he died suddenly of a heart attack.

As Alan died last, his former Will leaving everything to Margaret failed and his estate fell to be divided under the rules of intestacy, benefitting only Alan's side of the family.

Margaret's Family's Claims

Margaret's sister claimed Alan had gifted the marital home to her as a deathbed gift. She and her brother also claimed that the couple had gifted them a significant share of their sizeable assets before they died in contemplation of their deaths.

The court reviewed the three conditions necessary to determine whether the DMCs were valid:

  • The gifts must be made in contemplation of impending death (although this may not be imminent, in a prior case a period of four months up to death was considered valid).
  • The gifts must be contingent on the person actually dying. If the person makes an unexpected recovery, the gifts will be reversed.
  • The person must 'deliver dominion' over the subject matter of the gifts (an example would be handing over the keys of a car to be gifted to the recipient).

The judge found several problems with Margaret's siblings' claims, including that Alan's heart attack could not have been contemplated at the time the gifts were said to have been made by the couple. Also some of the alleged gifts were non-specific in nature, excluding the house.

An Ineffective Will

The judge did not allow the claims but noted the sadness of the case and expressed the view:

"…this is a classic example of how the principle (of DMCs) is not to be used as a device to validate an ineffective will."

The ineffective Will was of course Alan's former Will, which led to only Alan's side of the family inheriting the couples' joint assets as on the evidence presented, the couple had intended that both sides of their formerly-close families inherit equally from their estates.

Strike It off the To-Do List Now

We see countless examples of people leaving it too late to prepare their Wills. Wills should also be reviewed regularly to stay updated. Triggers include marriage, divorce, birth of children, property acquisition or family disputes.

If you or a relative or friend are in urgent need of a Will we are able to provide a swift service. For more information please contact Judith Cuxson in our Private Client team on 07788 313462, or complete the form below.

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