Problems with Deathbed Gifts and why they are No Substitute for an Updated Will

A recent High Court case, Davey and another v Bailey and others [2021] EWHC 445 (Ch), has proved to be a cautionary tale and good illustration of the limitations of deathbed gifts. Guy Platon reviews the case, stressing the importance of ensuring your intentions for your assets are detailed in a professionally drafted Will.

What is a Deathbed Gift?

‘Deathbed Gifts’ are not reported very often and are gifts that are made in the giver/donor’s lifetime but are made in contemplation of death and are intended to take effect in the future.

In order to be valid the gift must be:

  • Made in contemplation, although not necessarily in expectation, of impending death.
  • Made upon the condition that it is to be absolute only upon the donor’s death and is revocable until that event occurs.
  • A delivery of the subject matter of the gift which amounts to a parting with ‘dominion’

The Courts have traditionally been very strict with the application of these guidelines, which have been enshrined in well-established case law.

These gifts are therefore hard to establish and are no substitute to a testamentary gift i.e. a gift made in a Will.

This was firmly underlined in the recent case, and it led to an unfortunate result which would seem at odds with the wishes of the deceased.

The Case – Davey and another v Bailey and others [2021] EWHC 445 (Ch)

In this case, a childless married couple had made basic mirror wills leaving everything to each other.  Unfortunately, there was no provision in the Wills for what would happen when the surviving spouse passed away.

During their lifetime, they sought to make 3 substantial gifts to the wife’s family.  The first gift was of a commercial property and money that was made by Mrs Bailey, with the approval of her husband, after she had been diagnosed with a terminal illness.  She died shortly after.

Shortly after, Mr Bailey sought to give his wife’s sister the couple’s marital home by handing her the property deeds.  He himself sadly died a few months later.

Unfortunately, each gift failed as a ‘death bed gift’ and therefore the couple’s entire estate went to Mr Bailey’s family through the rules of intestacy (as he had inherited his wife’s whole estate under her Will).

The gifts all failed at least one limb of the 3 stage test above. For example, the final gift by Mr Bailey was not made in contemplation of death as he died suddenly of a heart attack.

How Can I Protect Myself?

The obvious way to avoid this was for Mr and Mrs Bailey to update their Wills when they had a chance, and certainly to avoid their property falling ‘outside’ of the Will as this is what unfortunately happened.

You can ensure your assets are distributed on your passing as per your intentions by detailing these in a professionally drafted Will.

Our experts will take the time to understand your intentions and ensure that these are documented clearly.

Contact Guy on 01254 67 22 22, email, talk to us via live chat or complete our online enquiry form and one of our experts will contact you.

Leave a Reply