Deathbed gifts – Validity and potential challenges

Also referred to as donatio mortis causa, a deathbed gift is a gift that a person (donor) makes to another when the donor is expected to die very soon. It is not a gift in the dying person's Will.

A deathbed gift applies when the dying person making the gift (the donor), gifts to another person either money or property, with the intention that this wish takes effect when they have passed away. Deathbed gifts can be difficult to navigate and determine because they are open to abuse. They are often challenged, especially in suspicious circumstances.

What are the criteria for a deathbed gift to become effective?

In order for a deathbed gift to become effective, certain criteria must be met. A gift must be made by the donor (dying person), when their passing is expected to be in the near future. It must be clear to the donor that their passing is about to happen. Stating that their death will occur 'at some point in future' is not enough. The gift must also only be applicable and given to the recipient when the donor dies. It is possible that the donor can revoke the gift if it transpires that they did not pass away when they believed they would.

A deathbed gift must not be confused with any other type of gift made during the donor's lifetime, and the donor must have the mental capacity to be aware of their intentions and wishes at the time of making the gift. The donor of the gift must also deliver the gifted item in some way to the recipient, and must part with all control and ownership of it. For instance, if a donor wanted to give a recipient a car as a deathbed gift, they would have indicated their intention to do this by handing over the related paperwork and keys of the vehicle to the recipient. The gift being given must also be capable of being 'given away' in such a manner, or it is not a deathbed gift.

Can a deathbed gift be challenged?

Yes, a deathbed gift can be challenged by beneficiaries that are stated within the donor's Will. They can challenge that a deathbed gift will reduce the amount they will inherit under Intestacy Rules.

A local authority can also challenge the validity of a deathbed gift under the Inheritance (Provision for Family & Dependants) Act 1975 if the deceased is survived by a living spouse or civil partner who was intended to inherit the donor's estate, but will now have a reduced inheritance because of the gift. This is especially in the case where costs from the estate may be required to pay for care home or care fees. Creditors can also challenge deathbed gifts if the donor has outstanding debts they need to pay.

Minimising the risk of a deathbed gift being challenged

The best way to ensure that a deathbed gift goes unchallenged is to make a codicil to your Will. This is an amendment made to a Will after it has been signed, and it can only be contested for very specific reasons, making it harder for others to challenge your wishes. At Owen White & Catlin, our experienced private client law solicitors can help you add a codicil to your Will.

Contact our Wills and Tax Planning Solicitors in London, Surrey and Middlesex

Since 1921, Owen White & Catlin Solicitors, have helped thousands of people make amendments to their Will and provided assistance in estate and inheritance tax planning. Our friendly and professional team are here to help and answer any questions you might have if you are thinking of making a gift in your Will. Request a callback by filling in our online enquiry form here.