What is a deathbed gift and is it legal?

Adam Sym, Probate Executive at Stephensons, looks at the legality of donatio mortis causa, otherwise known as deathbed gifts.

Deathbed Gifts Donatio Mortis Causa

What is a deathbed gift?

A deathbed gift, or donatio mortis causa, is a legal principle with its beginnings in Roman law. It is a mechanism by which people can make gifts which will take effect on their death outside of the provisions of their will or the intestacy rules.

What makes a deathbed gift legally valid?

In order to be a valid deathbed gift, there are a number of conditions that must be met. These conditions have been reviewed and developed over centuries, but Lord Justice Jackson summarised three requirements to constitute a legally valid deathbed gift in King v The Chiltern Dog Rescue and Redwings Horse Sanctuary [2015] EWCA Civ 581:

  1. the person making the gift must contemplate his or her impending death
  2. the gift must be clearly conditional upon that person’s death actually occurring
  3. the person making the gift should deliver “dominion” over the subject matter of the gift

1. Whilst the person’s death does not need to be inevitable, there must be good reason to anticipate their death in the near future from an identifiable cause, such as a serious illness, risky operation or dangerous journey. Approaching the end of a person’s natural life span may not necessarily be sufficient for the purpose of a deathbed gift.

Throughout Lord Justice Jackson’s decision in the case above, he commented on an earlier case concerning a deathbed gift and considered that the person making the gift had ample opportunity to take advice and make a will to ensure that their wishes were enacted. He therefore did not agree that this first condition had been met.

2. The gift ought to be revocable at any point during the lifetime of the person making the gift. In addition, provided that death due to the identified cause is not an inevitability, the gift will lapse if the death does not occur due to that identified cause. If the person making the gift does not use conditional wording, the court may be willing to infer this wording in the right circumstances, as they did in Sen v Headley [1991] EWCA Civ 13.

3. Lord Justice Jackson in the above-mentioned case concluded that “dominion” means physical possession 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.

One other requirement is that the person making the gift must have the necessary mental capacity to make the deathbed gift. The standard required, however, will ultimately depend on the subject matter of the gift. As the subject matter of the gift becomes more significant, the standard required will increase and the test will move more towards the test for capacity to make a will.

Are deathbed gifts legal?

In summary, there is clearly legal provision for valid deathbed gifts to be made. However, such gifts have a long history of disputes surrounding them and the facts can be difficult to establish, as the only witnesses to the deathbed gift are often the person who made the gift prior to their death and the person who has received the gift, who of course has an interest and cannot always be considered as a credible witness.

The courts are very strict in their application of the conditions required and many have been careful not to widen the application of this law. I would always recommend seeking advice on the making of a will in the first instance as the provisions of a will appear to be upheld far more than the provisions of a deathbed gift.

About the author

Adam Sym is a Probate Executive at Stephensons and specialises in wills, inheritance tax planning, probate and estate administration, lasting powers of attorney, Court of Protection applications, and trusts.

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