Death Bed Gifts

What are they?

A death bed gift (more formally known as donation mortis causa) is a gift made by an individual who believes that there is a chance of imminent death and wish to make a gift outside of the provisions of their Will or if they have not made a Will, outside the Intestacy rules.

The Wills Act sets out very stringent requirements on individuals completing a valid Will – namely that it has to be in writing and signed by the individual in the presence of two witnesses.

However, an individual in certain circumstances can successfully make a deathbed gift which does not require any formality, even for gifts of land! Such an exception has often been perceived as undermining the requirements of the Wills Act.

What makes them valid?

For a deathbed gift to take effect there needs to be the following:-

  1. The gift must be made in contemplation of death.

The donor must anticipate that they do not have long to live due to an identifiable cause, though there is no requirement for the donor to be in hospital or for death to be inevitable. As exampled in King v Dubrey 2014, contemplation of death means serious illness or perhaps embarking on a dangerous expedition or dangerous operation.

  1. The gift must be made with the intention that the property will pass on the donor’s death, as opposed to during their lifetime.
  2. The gift must be given or ‘delivered’ physically.

Either the gift itself or something representing the gift must be delivered by the donor or by their authorised ‘agent’. Under Sen v Headley 1991 it was concluded that physical possession is of (a) the subject matter or (b) some means of accessing the subject matter (such as the key to a box) or (c) documents evidencing entitlement to possession of the subject matter. For land this can mean handing over the deeds to the property.

In prior years the case law concerning deathbed gifts seemed to become increasingly relaxed with courts frequently upholding such claimed gifts.

Such a development became problematic for Executors and beneficiaries of an estate, as often the gift in question (i.e. the property) would be the largest asset of an estate. Such claims often resulted in protracted litigation for an estate in a situation where the one of the main witnesses was no longer around to give their version of events. This left the courts stuck between balancing the apparent wishes of the donor and upholding a valid Will. This was a tilt which seemed to lean away from the requirements of the Wills Act.

Fortunately, the Court of Appeal decision in King v Dubrey 2014 and the decision in Davey & Anor v Bailey & Ors 2021, held that the above rules must be strictly followed for the gift to be legally valid and has curtailed further expansion of the doctrine and stressed the extreme caution which courts should apply to such claims.

If you have concerns that a person is asserting a death bed gift against an estate you are Executor or beneficiary of, or believe that you are the recipient of a valid death bed gift, then it is important that professional advice is taken on your position with a member of our Contentious Estates team.

Additionally, a common theme in the case law of this doctrine is that individuals can reduce the opportunity of such claims by regularly reviewing their Wills and discussing with their advisers and properly documenting any lifetime gifts they wish to make.