A mum, dad and child hold hands as they walk along a beach

Deathbed gift overturned

In February we reported on a case where an alleged deathbed gift which had been made four to six months before the donor’s death was upheld by the High Court. The appeal against that judgment has now been heard by the Court of Appeal with a very different outcome.

For deathbed gifts (or donatio mortis causa (DMC) to give them their correct legal title) to be effective they 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 the gift 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.

The facts of the recent Court of Appeal case were that 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 by the High Court that the gift satisfied the requirements of a DMC with emphasis being put on the corroborative evidence provided by the several invalid Wills left by Mrs Fairbrother in favour of Kenneth.

As we observed following the High Court decision, the extension of DMCs to gifts made months rather than days before death runs counter to a world where the trend is for more regulation rather than less. The lack of safeguards inherent in the doctrine was clearly a concern for the Court of Appeal who in their judgment stated that, “it is important to keep DMC within its proper bounds. The court should resist the temptation to extend the doctrine to an ever wider range of situations”.

On considering Mrs Fairbrother’s gift the court noted that, although elderly, when she had made the purported gift Mrs Fairbrother was not suffering from any specific illness, she was not contemplating her impending death, nor was she about to undergo a dangerous operation or hazardous journey. Thus the court held that the purported gift was not made by Mrs Fairbrother in contemplation of impending death. Moreover the words used by her (”this will be yours when I go”) were more indicative of an intention to make a Will to that effect, rather than a gift.

The High Court judgment in favour of Mr King was overturned, but he was successful in claiming £75,000 from the estate on the basis that he was financially dependent on Mrs Fairbrother at the time of her death.

In our opinion, this decision was correct. It is difficult to see how someone can make a gift in contemplation of death when they are hale and hearty, albeit elderly. The Wills Act 1837 includes stringent rules as to the form and execution of Wills to try to counter, in so far as is possible, fraudulent behaviour, but verbal gifts made by vulnerable people do not benefit from the same safeguards.