What Is A Death Bed Gift?

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By Nicola Briggs - 22nd October 2021

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A death bed gift is when someone fears they are in imminent danger of dying, and makes an oral request that a specific person receives a specific gift from their estate. There is nothing in writing and possibly no other witnesses.

Death bed gifts and the law

A death bed gift will cause a significant amount of chaos and is best avoided if possible. Instead, we advise that you go through the formality of making a written Will. This shows clarity of thought and intention. It also protects the estate from a dispute because an execution process involving two independent witnesses is followed.

Nevertheless, death bed gifts are a surviving relic of Roman law, and as such are recognised in common law (but not by statute). It allows a person who is surprised by sickness (and so doesn’t have the opportunity to make a Will) to make a valid expression of their testamentary intentions.

A death bed gift should relate to a gift which is revokable, meaning it can be cancelled. If a recovery is made and death does not occur, the death bed gift no longer remains valid. The would-be recipient of the gift cannot claim years later that it’s what the deceased would have wanted, on account of historic events.

An example of a death bed gift would be stating to your son, who has driven you to hospital because you are suffering from Covid: “You can keep the keys because I won’t be driving any more”. Another example might be to say to a relative who is visiting you on your sick bed: “The house is yours”.

Those who are entitled under a Will or an intestacy typically dispute a death bed gift. This is particularly true where the only witness is the person to whom the gift was supposedly given. Relatives do not tend to take this type of gift well and inevitably the matter ends up in court.

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Will the court uphold a death bed gift?

For a death bed gift to be upheld by the courts, it is necessary to prove that:

  1. The gift was made in contemplation of an impending death in the near future from a known cause. This is more than likely a subjective test - for example, if the person making the statement had a terrible fear of flying and was boarding a plane, this would count.
  2. The gift is conditional upon death occurring, i.e. the plane has to actually go down;
  3. There was some parting of dominion over the subject matter – this being the most difficult element to prove. Physical delivery of keys to a car would meet the requirement, as would be the handing over of a passbook to a Post Office account, or the handing over of Title Deeds to unregistered land. The verdict is still out on whether handing over the PIN number to a bank account or a registered title number to registered land would meet the requirement; and
  4. The deceased had the capacity to make the gift and there was no undue influence from third parties, particularly the person receiving the gift. Points 3 and 4 will undoubtedly be used by those contesting the validity of the gift.

Usually, the person giving the gift dies within five days of making the statement. There have been cases where a four month period has elapsed. However, believing that you are going to die of old age at some point within the next 12 months is not the same as being in fear of imminent death and does not remove the need for a proper Will to be drawn. Some alleged death bed gifts have failed because a Judge has found the oral statement to be no more than a list of instructions for the drafting of a Will.

In conclusion, it is going to be an uphill battle for this type of gift to succeed. We encourage our clients not to put themselves in the position where they have a sudden panic that they wish to make a Will or alter a Will. Rather, we recommend that plans are put in place for testamentary dispositions to be recorded in an orderly fashion.

If you want to make a Will, or you want to alter your Will, please contact us now at Aticus Law for a free initial enquiry. We understand that there may be situations where time is of the essence. We will take this into account when drafting your Will, ensuring your wishes are properly fulfilled after your death.

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