Following the Covid-19 pandemic we may see a rise in the number of individuals attempting to make deathbed gifts perhaps where it has not been possible to make or update a Will in order to avoid assets passing via the intestacy rules, or to a beneficiary under an out of date Will who the donor no longer wishes to benefit. However, it may not be as straightforward one might think to make a valid deathbed gift.
Deathbed gifts are governed by the equitable principle of ‘donatio mortis causa’. This is an ancient doctrine deriving from Roman law and centuries old English law which determines that certain gifts made in contemplation of impending death can still be valid even though they do not meet the usual formal requirements of a Will. There are three main requirements that must be met in order to constitute a valid donatio mortis causa, as set out in the leading case of Sen v Headley :
- The gift must be made by the donor in contemplation of their impending death, not from an ongoing illness or old age where there is the possibility that they might die at some point. They should be contemplating death in the near future for a specific reason such as a serious illness or upcoming operation.
- The gift must be contingent on the donor dying. In other words, the passing of ownership is conditional on death and the donor intends that the gift will only take effect if and when their death occurs. Until then, the donor has the right to revoke the gift.
- The donor must intend to part with possession of the subject matter of the gift and must physically hand it over or deliver it in some way to the recipient before their death. The subject matter of the gift must also be capable of being given away in this manner. In other words the donor needs to give physical possession of the item, or some means of accessing it (such as the key to a box), or documents evidencing ownership of the item.
The case of Sen v. Hedley also confirmed that gifts of land can even be made via donatio mortis causa, despite the usual requirement for transfers of land to be made in writing. However this does come with its own difficulties as to how the giving of physical possession can be evidenced, particularly in relation to registered land where there will be no physical deeds that can be handed over. Therefore it is always preferable, wherever possible, to make a valid Will or lifetime transfer when dealing with gifts of this type.
Deathbed gifts often occur in situations where there is no Will or it is not possible to update the current Will to accurately reflect the donor’s intentions. Provided that the gift meets the above criteria, it will be treated as a lifetime gift and it will therefore fall outside the Deceased’s estate. This means it will not pass to the named beneficiary under an out of date Will or to the personal representatives on an intestacy, but will pass to the donee absolutely. There may well be Inheritance Tax to consider as a result so it is advisable to obtain legal advice and you can contact our Wills and Probate department for help in relation to this.
In reality, donatio mortis causa claims are rare and even fewer are successful due to the way in which deathbed gifts are made, often verbally and behind closed doors with only the donor and donee present. This makes it difficult to prove the validity of such gifts and can give rise to significant concerns about abuse and fraud as well as being open to challenge by disappointed beneficiaries under a Will or intestacy. It is therefore advisable to ensure that the gift is documented somehow if at all possible, by a written, audio or video recording of the conversation.
Perhaps more relevant to the current pandemic is the logistical problem caused by the third requirement, which is for the donor to give physical possession of the gift to the donee. This means the gift can only be made if the donee is able to visit the donor on their deathbed for them to physically hand over the gift or some means of accessing it, as discussed above. Currently this is being complicated by the lockdown and travel restrictions which prevent friends and family members who live abroad or in another part of the country, or indeed those who are themselves vulnerable and shielding, from visiting the donor to say their final goodbyes in person. Consequently, deathbed visits are taking place more and more by the means of video call such as Zoom or Skype. This may help with the evidential difficulties of deathbed gifts as it is possible to record video calls, however this does not solve the problem of physically handing over the gift itself.
It is clear from the evidential and practical difficulties that can arise in relation to making a donatio mortis causa, that this should only be a last resort and not as an alternative to making a valid Will
If you would like more information, please get in touch.