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Deathbed Gifts - The Last Resort

View profile for Stephen Lawson
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Deathbed gifts are back in the news following a High Court decision in June 2013 to uphold a controversial final bequest.

It’s widely known that to bequeath a specific gift of property it is necessary to make a Will, signed before two witnesses, as laid down in the Wills Act 1837.

The law recognises this formality can sometimes lead to injustice and a doctrine called “Donatio Mortis Causa” has developed.  This means that if someone facing imminent death decides to bestow a gift to be completed on death and delivers the subject matter of the gift, then this transaction can be upheld – even though it may be contrary to the terms of an earlier Will.  In practice this means that someone may hand over deeds and keys to a house or a building society passbook and the gift would be valid even though necessary legal forms were never signed. Such a transaction was upheld by the High Court in the case of Vallee –v- Birchwood, earlier this year.

One of the down sides is that these transactions can give rise to huge substantial evidential uncertainty – and, even worse, protracted disputes within families. Although they can be a good way of enacting the last wishes of someone who has died, an unscrupulous beneficiary may, for example, take possession of title deeds or a building society passbook and claim later they were handed over as a deathbed gift.

Our best advice therefore is always to have a valid Will which is periodically reviewed and kept up to date – and only use the concept of the deathbed gift as a final resort.

For more information contact our Wills and Probate team

Deathbed gifts are back in the news following a High Court decision in June 2013 to uphold a controversial final bequest.

It’s widely known that to bequeath a specific gift of property it is necessary to make a Will, signed before two witnesses, as laid down in the Wills Act 1837.

The law recognises this formality can sometimes lead to injustice and a doctrine called “Donatio Mortis Causa” has developed.  This means that if someone facing imminent death decides to bestow a gift to be completed on death and delivers the subject matter of the gift, then this transaction can be upheld – even though it may be contrary to the terms of an earlier Will.  In practice this means that someone may hand over deeds and keys to a house or a building society passbook and the gift would be valid even though necessary legal forms were never signed. Such a transaction was upheld by the High Court in the case of Vallee –v- Birchwood, earlier this year.

One of the down sides is that these transactions can give rise to huge substantial evidential uncertainty – and, even worse, protracted disputes within families. Although they can be a good way of enacting the last wishes of someone who has died, an unscrupulous beneficiary may, for example, take possession of title deeds or a building society passbook and claim later they were handed over as a deathbed gift.

Our best advice therefore is always to have a valid Will which is periodically reviewed and kept up to date – and only use the concept of the deathbed gift as a final resort.

For more information contact our Wills and Probate team

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