What’s a death bed gift and are they valid?

The usual procedure for making a will is set out in the Wills Act 1937 which requires that in order for a will to be valid it must be:

  • In writing and either signed by the testator, or by another person in their presence and by their direction; and
  • Signed (or the signature acknowledged by the testator) in the presence of two or more independent witnesses, who are present at the same time and who must also attest and sign the Will.

However sometimes it’s not possible to make a last minute will or people decide in their last hours that they would like to make a gift. This is known as ‘Donatio Mortis Causa’ which is essentially a gift given by someone expecting or contemplating death and is more commonly referred to as a death bed gift.

In order for a death bed gift to be valid and to override the requirements of the Wills Act 1937 the gift must meet the following requirements:

  1. the maker of the gift was contemplating their impending death when the gift was made;
  2. the maker of the gift intended that the gift would only take effect if and when their death occurred and that otherwise it could be revoked;
  3. the maker of the gift delivered the gift to the recipient (by handing over the deeds to a property for example); and
  4. the maker of the gift had capacity to do so.

Keeling v Keeling 2017

A recent case that dealt with the issue of whether a gift was in fact a valid death bed gift was the 2017 case of Keeling v Keeling. In this case the Deceased died without a will and was survived by two brothers and the children of a third deceased sibling.

As she died without a will the estate was set to be shared with the two brothers and the children of the Deceased’s sibling each receiving a third of the Deceased’s share under the Rules of Intestacy.
However, one brother had applied for and received Letters of Administration and had transferred the Deceased’s property into his name on the basis that the Deceased had told him that she wanted him to have the property upon her death. Unsurprisingly the other beneficiaries were not happy with this and contested it.

In this case there were several factors that persuaded the court that it was not a valid death bed gift including;

  1. The brother was inconsistent in accounting the events that took place:
  2. The Deceased wasn’t actually considered to be contemplating death at the time of the purported gift;
  3. Whilst the Deceased had handed her brother the Deeds, as he later provided these to her solicitors he was considered to have been looking after the Deeds ; and
  4. The Deceased had recently had the opportunity to make a will but refused to do so.

It can be seen that it would be quite easy for a person to allege that they were given property by a deceased person especially if there were no witnesses at the time. The court are therefore likely to highly scrutinise the evidence provided by the person who received the gift. They are also likely to want to consider the deceased’s previous testamentary wishes, the relationships of the deceased, the behavior of the deceased before the gift was made, the deceased’s health (before and at the time of the gift) and their capacity at the time the gift was made.

Cases where a death bed gift has been held to be valid by the court can be hard to find. One such case is the case of Sen v Headley [1991] Ch 425. In this case the Claimant was a close friend of the Deceased. 3 days before his death she had asked him what would happen to the house upon his death and he stated: ‘The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’

Another is the case of the case of Vallee v Birchwood [2013] EWHC 1449 (Ch) which was also a successful case. In this case the Claimant was the adopted daughter of the Deceased who lived in France. When she had visited him, she had confirmed that she would return at Christmas. The Deceased responded to say that he did not expect to live that long and that he wanted her to have his house when he died. He therefore gave her the title deeds to his property and a key. He died 4 months later without living a will. This issue of whether or not this amounted to Donatio Mortis Causa was ultimately put to the court and the court decided that it did. This was even appealed to the Court of Appeal who also confirmed that it was a valid Donatio Mortis Causa.

It can therefore be seen that the time frame of the gift is not as important as the requirement for a person to be contemplating their impending death.

If the court do determine that a Donatio Mortis Causa was a valid gift then the Executors or Administrators will be held as the trustees of that gift on behalf of the donee.

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