Allegations of deathbed gifts are not uncommon and are often controversial. We explain the key elements required for them to be valid.
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The short answer is that deathbed gifts, also known as Donatio Mortis Causa, are perfectly valid as long as certain conditions are satisfied – whether or not the donor already has a valid Will. Deathbed gifts are sometimes referred to as deathbed Wills, but in most cases, there is nothing in writing. Indeed, the problem in many instances where deathbed gifts are alleged is that the only witnesses were the donor and the beneficiary of the gift.
Deathbed gifts definition
Deathbed gifts must be made in contemplation of death and are an exception to the requirements of the Wills Act 1837. In essence, they sit somewhere between a lifetime gift and a gift made in a Will – the distinction being that a deathbed gift is made during the donor’s lifetime but is conditional on their death, whereas a lifetime gift takes immediate effect.
There are three conditions to be satisfied for a deathbed gift to be valid:
- It must be made in contemplation of impending death (although death may not be imminent – in one case, a gift made four months before death was considered valid).
- The gift must be contingent on the person dying. In other words, if the person recovers unexpectedly, the gift will be reversed.
- The donor must ‘deliver dominion‘ over the subject matter of the gift, either actual or constructive. For example, if the gift is a car, handing over the car itself (actual), or providing the keys and vehicle registration document (constructive).
Evidence of deathbed promise
Understandably, deathbed gifts are often controversial and the courts are keen to discourage the fabrication of unfounded claims against estates. But while case law highlights that stringent evidence will be required to establish that a deathbed gift has been made, the very nature of such a gift means there is often very little evidence.
In reality, if all of the critical elements are present, and there is some evidence of the promise, it is likely to be difficult to resist a claim that a deathbed gift was made. That evidence might be as simple as a voice or video recording made on a mobile phone.
However, to ensure their estate passes as they wish, the safest option for the donor is always to execute a valid Will or a Codicil to an existing Will. Our Specialist Wills and Probate solicitors have considerable experience in preparing emergency Wills in end-of-life cases. Speak to them today on 01225 755656.