Trusts, Wills & Estates

Gifts on death without making a Will

A well-drafted Will is the most effective way to ensure that your wishes are carried out as you intend them after your death, but in certain circumstances, a valid gift can be made in contemplation of impending death without the need to make a Will. The concept, given its Roman origins, has a Latin title: donatio mortis causa (DMC). More informally, they are referred to as “deathbed gifts”.

Conditions for the gift

For a gift to be effective under the DMC doctrine it must satisfy three conditions:

  • there must be a clear intention to make a gift; however, the gift will only come into effect if the donor dies and can be revoked until then.
  • the gift must be made in contemplation of impending death; and
  • the donor must hand over the subject matter of the gift or the documents giving title to it. If, for example, the gift is a Building Society account then handing over the passbook would be sufficient.

The donor must also have capacity to make the gift, and if the gift is a significant one comprising a large part of the donor’s assets, this test will be as stringent as the assessment of capacity to make a Will.

For many years a DMC could only apply to purported gifts of personal property. But a case in 1991 extended the concept to real property so that it became possible for a donor to make a DMC of his or her house.

Until recently most reported cases on DMCs involved gifts that were made only a matter of days before death but the concept of “impending death” has become more elastic and a 2013 case involved a gift that was made four months before the person died. This precedent has now been followed in a recent High Court case.

Mr King and the gift of Mrs Fairbrother’s house

Mr Kenneth King moved in with his Aunt, Mrs June Fairbrother, in 2007 when Mrs Fairbrother became in increasing need of care at home. Mrs Fairbrother was an animal lover who owned several pets and animal charities were significant beneficiaries of her Will. The main asset of her estate was her home valued at £350,000.

Between 2010 and 2011, Mrs Fairbrother made a number of unwitnessed, and therefore invalid Wills, purporting to leave all her assets to Kenneth “in the hope that he will care for my animals”.

Kenneth alleged that around four to six months before Mrs Fairbrother died, she had handed him the deeds to her house saying, “This will be yours when I go”. He then put the deeds in his wardrobe. Kenneth argued that his Aunt’s actions amounted to a DMC, a claim that was contested by the six charitable beneficiaries of the Will.

It was held that the gift satisfied the requirements of a DMC. The decision in the case came down to the credibility of Kenneth’s evidence, which the charities attacked on the basis of Kenneth’s chequered business career and his prior bankruptcy. Nevertheless the judge found that the unwitnessed Wills were crucial evidence of Mrs Fairbrother’s intentions which supported Kenneth’s assertions and thus the gift of the house was held to be a valid DMC.

The future for DMCs

Extending the application of DMCs to property and to gifts made months rather than days before death, perhaps runs counter to a world where the trend is for more regulation rather than less. DMCs are a hybrid of lifetime and testamentary gifts, but without the requirement for writing and witnesses as set out in the Wills Act 1837, or the need for a gift of land to be in writing.

The requirement to pass over the subject matter of the gift or title documents to it may perhaps limit the applicability of the doctrine in the future, especially now that the vast majority of land is registered in digital form at HM Land Registry.

The courts will always scrutinise such gifts very thoroughly and have said that they will throw out any case where an alleged DMC is found to be an attempt to make a testamentary gift without the correct formalities being followed.

The absence of writing or witnesses clearly makes such gifts difficult to establish, and the outcome of the King case may have been different had the invalid Wills not existed. The best course of action must always be to make a valid Will, and to keep it updated, to ensure that there is no ambiguity and your property will definitely pass to your chosen beneficiaries.

For further information about estate planning or making a Will, please contact a member of our private client team.