Understanding Deathbed Gifts

The Court of Appeal reviewed the law surrounding deathbed gifts in King v The Chiltern Dog Rescue Centre and Others [2015].

Deathbed gifts – which also go by the antiquated term Donatio Mortis Causa (DMC) – bypass the usual requirements when a person wishes to leave part or the whole of their property to chosen beneficiaries. No Will is required if a deathbed gift is made provided three key conditions are met:

• The deceased must be contemplating imminent death;
• The gift only takes effect on death and can be revoked at any time before death; and
• The deceased delivers dominion over the subject matter of the gift, for example physically handing over keys/deeds to a house

The term ‘deathbed’ is a little misleading and should not be viewed in the literal sense. It is enough the deceased knew they were going to die quite shortly from a specified cause, rather than inevitably from old age some time away.

In the case of King, June Fairbrother died in April 2011. She was divorced with no children but held a deep affection for animals and prepared her last valid Will in 1998, which largely left her Estate which comprised her house worth over £350,000, to various animal welfare charities.

In 2007 her nephew Kenneth King came to stay and ended up looking after her until her death. Kenneth had previously been declared bankrupt twice and served a prison sentence for acting as a director while disqualified. With Kenneth’s help, June subsequently made two later ‘Wills’ leaving her Estate to him, but neither of which complied with the necessary formalities and were therefore invalid.

Kenneth’s case was that June had also verbally told him some four months before her death that she wanted him to have her house and handed him over the deeds. When she died and the Wills were found to be invalid, Kenneth claimed June had made a valid deathbed gift of the house. He also made a claim under the Inheritance (Provision for Family and Dependants) Act 1975 as a dependant of June.

The charities named in the 1998 Will challenged Kenneth’s uncorroborated version of events but lost when the matter first went to Court. The judge commented that even if he had failed on the deathbed claim, Kenneth would have been awarded £75,000 in his 1975 Act claim.

The charities appealed and so did Kenneth, who wanted more than £75,000 (if he lost the DMC claim). The question for the Court of Appeal to address was whether June had in fact made a valid deathbed gift of her house.

The Court of Appeal found June was elderly but did not have a good reason to anticipate death in the near future from an identified cause. On that basis she should have simply instructed a solicitor to update her Will in accordance with her wishes. Therefore the first condition was not met as June was not contemplating imminent death, so Kenneth’s claim must fail. The Court of Appeal went on to attempt to clarify what 'parting with dominion' means, whilst also making some comments regarding Kenneth’s background and questioning his uncorroborated version of events. It also took the opportunity to stress the importance of making a Will given the far greater opportunity of fraud in DMC cases. The Court of Appeal was anxious to not make such claims easier, instead preferring that such claims must always be backed by the strongest evidence. There was some mild consolation for Kenneth because he was still awarded the £75,000 in his 1975 Act claim.

Whilst it isn’t always easy or practical for an elderly person to visit a solicitor to prepare their Will, as Kenneth found out the hard way, it could have lasting repercussions. The protection of the Estate and its intended beneficiaries by using a solicitor to prepare a Will cannot be overstated and is far better than leaving matters to chance.

If you have any queries concerning this or any other contentious probate matter, please contact Noel McNicholas on 01455 620805 or nm@thomasflavell.co.uk