“I want you to have this”: deathbed gifts and their validity

We have all seem films or programmes or read stories of people who, on their deathbed, bestow a gift upon a loved one – outside of their Will and often quite spontaneously. I am often asked whether these deathbed gifts actually exist and, if so, are they valid.

The simple answer to this is yes, but only if a number of conditions are met:

  • The gift must be made by the donor in contemplation of their own impending death.
  • The gift must be contingent on the donor dying.
  • The donor must part with the gift or deliver it in some way to the donee.
  • The subject-matter of the gift must be capable of being given away in this manner.
  • If there was a gap of several months after the gift had been made and at the time of the gift being made, the donor was not seriously ill/contemplating death from a known cause, the gift will not be valid
  • If the donor survives then the gift becomes invalid and the donee has no rights over it

Gifts of this kind are called a ‘gift in contemplation of death’ or by its’ Latin name ‘donatia mortis causa’ and as long as they meet the criteria above they are perfectly legal. However, as these are made at a point where the donor can be considered extremely vulnerable they are open to challenge (especially with a high value gift) so it is really important that the donor has full capacity and understands the effect of making the gift.

The making of a deathbed gift can override an existing Will and any provisions made within it although it should be noted that this can cause conflict with potential beneficiaries who would be likely to contest any such gifts.

It is therefore advisable to dispose of you assets through a Will – this will allow not only gifting but also the creation of trusts, the setting out of any wishes for your funeral or your estate and naming guardians for any dependants. The Society of Will Writers recommends that you review your Will every 3-5 years to ensure you are still happy with the provisions you’ve made.

If you wish to discuss writing a Will or reviewing an existing document contact me on the details below for a no obligation consultation.