What Are Deathbed Gifts And When Are They Legal?
What Are Deathbed Gifts And When Are They Legal

What Are Deathbed Gifts And When Are They Legal?

20 November, 2017 3 minutes reading time


A deathbed gift can override the usual formalities for making a will. This gift by a dying person is formally known as Donatio Mortis Causa. This year, in a fascinating case, an 84-year-old man, Stephen Keeling, was prevented from inheriting a house that he claimed was a deathbed gift from his elderly sister, Ellen Exler.

The co-beneficiaries took Stephen to court. Why did the judge find the deathbed gift invalid?

Background

Stephen Keeling cared for his 91-year-old sister, Ellen, before she died in 2012. Ellen died without a will (intestate). She was a widow with no children. Her estate (nearly £1 million, mostly her house, Hadley House) would be shared by her brothers, Stephen and Frank (87 and suffering from dementia), and her deceased sister’s two children.

Stephen, Ellen’s brother, hired a solicitor for estate administration. He received letters of administration. Four months after Ellen’s death, Stephen said Ellen gave him the house deeds and keys. He claimed she wanted him and his wife, Doreen, to have the house. Stephen then transferred the house to himself and Doreen. They rented it out.

The Challenge

However, his fellow beneficiaries made a challenge. They had learned from Ellen’s professional carers that she did not want Stephen or Doreen to “get their hands on my money” and that they “would never get my house over my dead body”.

It was also discovered that a professional assessment had been made before her death, which cast serious doubt on Ellen’s capacity to manage her property and affairs.

Valid Deathbed Gifts

A deathbed gift will override a Will if:

  1. It is made in contemplation of impending death;
    At the time of making the gift, the donor must have contemplated death within the near future. Understanding that he/she will die one day will not qualify.
  2. It is conditional on death;
    The gift must only take effect upon the donor’s death. This means that the donor must have been able to withdraw the gift if he/she did not die. It does not qualify as a deathbed gift if the donor had only intended to make an outright lifetime gift.
  3. It is parted with or delivered to the intended recipient;
    The donor must give away the property or control of the property that he/she is gifting. This can take the form of delivering the actual item OR transferring legal ownership.

The Court’s Decision

Judge Charles Hollander QC concluded that the deathbed gift was invalid because:

  1. Stephen had given inconsistent evidence;
  2. Ellen survived 6 months after her first heart attack in May 2012 and did not “have good reason to anticipate death from an identified cause.”
  3. Any “contemplated” death in May did not occur: she recovered so that any gift would have lapsed.

In summing up, the judge slammed Stephen for his “shameless sense of entitlement”. Read More.

Conclusion

As this case demonstrates, the courts will demand strong evidence to establish that a deathbed gift has occurred. Unless the three elements required are present (even in a voice recording or video), it could be difficult to resist a challenge.

However, it’s fair to say that the safest way to ensure your wishes are carried out is to ensure you have a will and that it’s kept up-to-date. Please contact us if you need any advice about a deathbed gift or want to discuss making a Will. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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