Esther Marshall
Contested Wills and Financial Provision
Deathbed gifts
The usual position for making gifts to take effect upon a person’s death is to make a Will. A gift made by a person in contemplation of impending death, is known as a deathbed gift.
When the donor dies, the subject-matter of the gift does not pass to the Personal Representative but to the person the deceased intended to benefit.
It is possible for a valid gift to be made on someone’s deathbed without the proper formalities for that gift having been followed.
By their nature deathbed gifts are usually made when time does not allow for formalities to be followed. They are therefore often made during private conversations which means that sometimes the only evidence that they took place at all is given by the recipient themselves. The risk of people falsely claiming such gifts were made, either knowingly or truthfully, is high.
As a result such gifts are subject to strict scrutiny and must be:
- made in anticipation or contemplation of death;
- conditional on the death of the donor; and
- the donor must have delivered over to the recipient the subject matter of the gift, or the means to obtain the subject matter, for example deeds or share certificates.
Strict proof of all three conditions will be required. If the recipient fails in any one of them it would seem that the gifted asset will revert to the Personal Representatives to be distributed in accordance with the Will or intestacy.
The first requirement will only be satisfied if the Donor contemplates death is in the near, but not imminent future, at the time that the gift is made. The contemplation must therefore be more than a general acknowledgement of death in the future.
The Donor must intend the gift to take effect and become absolute only upon their death, and such gift is therefore capable of being revoked at any time before death.
The Courts will examine the evidence of an alleged gift and look at the surrounding circumstances in coming to a decision about these claims. Due to the evidential difficulties, these disputes can be difficult to resolve.
Martyn Trenerry, specialist in Contested Wills at Mullis & Peake LLP Solicitors, said:
“A claim for a deathbed gift can only succeed where there is compelling and persuasive documentary evidence or evidence to support it. It is therefore vitally important to take legal advice on your position in this respect before embarking on litigation, which can incur significant costs and delay in administering the estate, not to mention the inevitable breakdown of family relations.”