14 August 2015 by

Death Bed Gifts and Homemade Wills – the Court of Appeal has the final word

Back in 2014, heads were turned by the High Court judgement in the case of King v Dubrey when the High Court upheld a death bed gift of a property that was made four months before death. However, the recent ruling in the Court of Appeal case, King v The Chiltern Dog Rescue and others (2015), has now overturned that decision.

The case also serves as a reminder of the problems that can arise when people attempt to create homemade wills, or sign letters giving away their assets on death, which don’t comply with the requirements of the Wills Act 1837.

The doctrine of death bed gifts (or ‘donatio mortis causa’, to use its Latin name) is usually found lurking as a plot line in murder mystery novels. It allows a donor to transfer property to a recipient on the donor’s death without complying with either the formalities required when making a Will or the formalities for transferring the ownership of property.

Facts of the case:

In 2007, Kenneth King, went to live with his aunt, Mrs Fairbrother, in her house in Hertfordshire to care for her in return for free board and lodging.

Mr King later claimed that, during the time they lived together, Mrs Fairbrother had promised him that the house would be his after her death. She also wrote a signed and witnessed note stating that, in the event of her death, she left her house and property to Mr King. Two months before her death, she signed a Will (without a witness) that Mr King presented to her.

When she died, the charitable beneficiaries under Mrs Fairbrother’s original Will expected to receive their legacies because none of the other documents she had signed prior to her death complied with the Wills Act.

However, the High Court found that Mrs Fairbrother had verbally gifted her property to her nephew as a death bed gift, overriding the wishes set out in her original Will.

The Appeal:

In reviewing the decision, the Court of Appeal analysed each of the three requirements for a valid death bed gift:

  • The gift must be made by the donor in contemplation, although not necessarily in expectation, of his or her impending death.
  • The gift must be contingent on the donor dying.
  • There must be delivery of either the asset or the title to the asset – for example, in this case, delivery of the deeds to the property or some means of accessing the property.

Applying the three conditions for a death bed gift to the facts of the case, the Court of Appeal found that Mrs Fairbrother had not made a valid death bed gift of her house because the first condition had not been satisfied.

Although aged 81 and aware of her deteriorating health, Mrs Fairbrother had no reason to expect to die imminently and there was no evidence that she had been suffering from any specific illness. She had both the time and capacity to approach her solicitors to make a new Will, leaving the house to her nephew, if she had wished to do so.

This is an interesting case in particular for the way in which the Court of Appeal has highlighted the strict limits within which the death bed gift doctrine should operate and, following this decision, it is clear that the doctrine should not be relied on as a substitute for making a valid Will.

If you would like to talk to us about reviewing your current Will, or putting a new Will in place, we would be happy to assist you. Please contact me Jane Molyneaux on 020 7288 4771 or by email at janemolyneaux@boltburdon.co.uk or my colleague Laura Wynn on 020 7288 4794 or at laurawynn@boltburdon.co.uk

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