Deathbed gifts

Inheritance dispute solicitor Chris Green reviews the latest case on 'Deathbed Gifts' 

The recent case of Keeling v Keeling (2017) has once again raised the issue of "donatio mortis causa", otherwise known as Deathbed Gifts.

These are very limited exceptions, allowing valid gifts to be made on the death of an individual, without having to comply with the formalities set out in the Wills Act 1837. To establish that a valid Deathbed Gift has been made, the applicant must show that: (i) the Donor had contemplated their impending death at the time of making a Gift; (ii) the Donor made a Gift which would only take effect if and when the contemplated death occurred, and which they could revoke at any time beforehand; and (iii) the Donor delivered the subject matter of the Gift to the recipient (e.g. handing over the Deeds to a Property).

In this case, the Deceased (Ellen) passed away without leaving a Will. She was survived by two Brothers (Stephen and Frank) and the children of a third sibling who had pre-deceased her. All stood to benefit under the Rules of Intestacy. Stephen obtained a Grant of Letters of Administration and, some four months later, he informed the other beneficiaries that Ellen had handed him the Deeds and keys to her Property following a Heart Attack, telling him that she wanted him and his Wife to have her House. As the Personal Representative of the Estate, Stephen then transferred the Property into the names of himself and his Wife, before renting it out.

The other beneficiaries then challenged the alleged Deathbed Gift and there was some compelling evidence supporting them. First, it transpired that Stephen had told his own Solicitors that Ellen wanted to make a Will, largely benefiting him. His Solicitors said an independent firm should be instructed, and when another Solicitor attended Ellen, they were told in no uncertain terms that she didn't want to make a Will at all. Second, after the purported expression by Ellen of her desire to gift the Property to Stephen and his Wife, Stephen handed the Deeds and keys to Ellen's Solicitors. That was considered to be contradictory behaviour if the intention was for them to have the House. Third, Ellen had not told anyone else about the purported gift and, over the course of the dispute, Stephen put forward at least three different versions of the events surrounding the making of the purported Deathbed Gift. Lastly, the Heart Attack in question had been relatively minor and not life-threatening.

Accordingly, it was considered highly doubtful that at the time of the purported Gift being made, Ellen was contemplating her own impending death. Further, as she recovered from the Heart Attack, the Gift would have in any event lapsed.

The Court dismissed Stephen's claim of there having been a valid Deathbed Gift made as "hopeless" and ordered that (i) the Property be included in the Estate, (ii) Stephen repay the rent he and his Wife had received to the Estate, and (iii) the entire Estate be distributed in accordance with the Rules of Intestacy.

If you are involved in or dealing with an Estate where it is claimed that a Deathbed Gift has been made, or if you feel you have received a Deathbed Gift which is being disputed, then please contact our Contentious Probate Team on 0808 139 1599.