Deathbed Gifts – To be Used or Avoided?

Despite what the name suggests, deathbed gifts (otherwise known as donation mortis causa) do not necessarily have to be made immediately prior to a person’s death. Instead, it is a legal principle which someone may use to make a gift outside of their Will or the intestacy rules in contemplation of their pending death. 

In King v The Chiltern Dog Rescue and Redwings Horse Sanctuary [2015] EWCA Civ 581, the requirements to constitute a valid deathbed gift were given as follows:

1. The donor must have made the gift in contemplation of their impending death i.e. they must be aware that their prognosis is terminal; 
2. The gift will only take place if and when the contemplated death occurs (and before this the gift is revocable); and
3. The donor must deliver dominion over the subject matter of the gift i.e. the donor must hand over physical possession of the gift, or the person receiving the gift must be able to evidence that they have access to the same (such as being given the key to a jewellery box).

The case of Sen v Headley [1991] Ch 425 confirmed that land is also capable of passing by way of a deathbed gift. 

With the possibility of large assets passing outside of a Will or the intestacy rules, understandably deathbed gifts can cause a multitude of issues that may result in disputes, given that they may be made verbally, without witnesses or any evidence in support of their creation. Their very nature can give rise to people taking advantage of situations whereby a donor may find themselves terminally unwell, and the Courts wish to avoid setting precedents which may open the floodgates to disappointed beneficiaries falsely constructing deathbed gift scenarios for their own benefit. 

Considering the above, the Courts are hesitant to support the validity of deathbed gifts unless the strict requirements set out are evidenced. In Keeling v Keeling [2017] EWHC 1189 (Ch), the Court held that a deathbed gift of a property made by the donor to her brother was unsuccessful due to gift failing all three of the requirements. Similarly, in the more recent case of Davey v Bailey [2021] EWHC 445 (CH) the Court also refused to allow two deathbed gifts of a butchers and a property, as they interpreted the donor’s intentions as an expression of wishes only, rather than a gift made in contemplation of her death.

In addition to the above, deathbed gifts can be challenged if there is evidence that the doner lacked the requisite capacity to make the same. 

Case law therefore suggests that deathbed gifts are difficult to enforce unless the three requirements are fulfilled and there is persuasive evidence in support of the same. Of course, in an effort to avoid this type of dispute after death, it is recommended for all donor’s to execute a valid Last Will, which will provide assurances as to how their assets will be distributed after the death. 

If you wish to seek advice regarding the validity of a deathbed gift, or are considering creating a Will, please do contact Irwin Mitchell on 0808 291 2246 or visit our Wills, Trusts and Estates web page for more information.