Case study: Understanding gifts made on your deathbed

Thu 18th Jul 2024
a hospital visitor's hand holds a patient's hand in bed of a hospital ward. In the blurred background a young nurse is chatting to the ward sister about the patient's care.

We would always recommend having your wishes set out in a will as this is the best way to ensure that those wishes are fulfilled. There are complex requirements for valid deathbed gifts and consequences, even if they are found to be valid.

Making a deathbed gift is not something which should be relied on in place of a will. However, sometimes circumstances change even if someone has a will and, if time is short, a person may decide to make a gift to someone they love on their deathbed. However, this is not something we would recommend to fulfil any clear wishes or intentions.

Hayley Gaffney, Associate at Coodes, explores a recent case brought to the High Court and what it means for the previously clear requirements for making a valid gift from your deathbed.

Gifts made on your deathbed

Although it is always important to have your affairs in order via a will, sometimes time is too short or circumstances change. If this is the case, people may occasionally decide to make a deathbed gift (or donation mortis causa). A deathbed gift is a gift that is made in contemplation of death occurring in the near future from a specific cause or reason.

Deathbed gift requirements are complex and must usually meet certain criteria:

  • Be made in contemplation of impending death – not just ‘I’ll die someday’ there must be a reason for knowing death is imminent;
  • Be contingent on death – i.e. it is revoked if the person makes an unexpected recovery and doesn’t die from the thing which made death imminent;
  • The actual title must pass and/or the subject matter physically passed over – i.e. car keys and V5 for a car, title deeds for a property etc;
  • The subject matter must be capable of passing.

It’s important to understand that if the gift is valid, it will supersede the terms of any will given prior. The item gifted will no longer fall into the estate after death.

Rahma v Hassan & Ors

The Case

A recent High Court Case, Rahman v Hassan & Ors (2024), found that text messages counted as evidence of the deceased’s attempts to make such a gift in contemplation of death.

In this case, the deceased owned a UK estate valued at around £1.4m. This included the estate of his wife who had died two weeks earlier. In 2015, he made a will leaving his UK estate to his wife’s three nieces and her brother (the defendant), who was also the executor, and obtained a grant of probate.

A friend of the deceased (the claimant) brought a claim alleging that on 15 and 20 October 2020, the deceased made gifts to him which amounted to donatio mortis causa (gifts in contemplation of death or deathbed gift) of all of his UK assets. This is unusual in itself as a deathbed gift will usually amount to just one item such as a car or property. The claimant asserted that he had known the deceased and his wife for years. He said they relied on him for assistance as they became older and unwell. He claimed to visit them several times a week and eventually moved in with them.

The problem was that the only living witnesses to the purported gifts were the claimant and his wife. This made the defendant and the deceased’s family suspicious.

The claimant produced an important witness, a will draftsman, whom the deceased contacted knowing he did not have long left to live. The draftsman took instructions from the deceased to draw up a will where the claimant was the sole beneficiary and executor.

The Result

Although an appointment had been made for execution of the approved will, the draftsman had not been able to secure witnesses and asked the deceased to arrange this. These events were crucial to the case and added significant weight to the claimant’s assertions about the promises. It showed a clear intention by the deceased for the claimant to benefit and receive his entire estate – just like the claimant said he did with the gift.

Later that morning with the deceased seemingly knowing the will would not be executed in time, two text messages were sent from the deceased’s phone to the draftsman. The messages reinstated his wishes and set out that he was gifting all of his assets to the claimant and intended for those gifts to be valid. The deceased also handed over all of his security devices, login details and passwords needed to access his financial accounts, as well as handing over the title documents for his house in London and the documents relating to his flats in Sutton. The deceased died later the same night.

The court concluded that the deceased had indeed intended to make a gift in contemplation of death and he had the requisite capacity to do so validly.

What does this case mean for future deathbed gifts?

This case has important implications for deathbed gifts given the fact that those texts were found to meet the criteria for valid gifts. Technically, as the defendant argued, it seems that the gifts should not have been valid as they did not meet the requirements. This case is highly unusual and throws open a whole lot more questions for people going forward.

Whilst there are very particular circumstances here, future cases could potentially seek to rely on text messages or other electronic means as proving valid gifts. At Coodes, we would certainly not put too much weight on the same decision being found in other circumstances.

Next steps

We would strongly recommend getting a will drawn up by professionals rather than relying on a text or deathbed gift. This will ensure your wishes are fulfilled once you are gone. If your circumstances change or you wish to gift a particular item to a loved one after your will is in place, a codicil (a document to amend an existing will) can be prepared amending the will. This is far more reliable than making a gift on your deathbed.

Our experienced wills and probate lawyers combine up-to-date legal expertise with friendly, jargon-free delivery. We can help you understand your options, make future plans and resolve any issues relating to wills and inheritance.

It is never too late to plan for what you want to happen to your estate. If you are looking to draw up a will, contact us via our online form  or call 0800 328 3282.

If you need advice about a deathbed gift or any contentious issues relating to an estate, please contact Hayley Gaffney via email or by calling 01872 246 233.

Thu 18th Jul 2024
a photo of Hayley Gaffney

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