
Donatio Mortis Causa- Deathbed Wills
Wills and Codicils | 12 October 2024
In the perfect world, every individual makes a will and sets out clearly their intentions for the distribution of their assets. Sadly, for some, the reality of their situation is only crystallised when they are faced with impending death. Some sensibly arrange to make a will. However, there are many cases where an individual has attempted to directly gift an asset to their chosen beneficiary on their deathbed.
Predictably, many of these gifts are disputed. In the case of Vallee v Birchwood (2013) an elderly man told his daughter that he didn’t think he would live until Christmas and that he wanted her to have his house. He gave her the keys to the property and the title deeds. The gift was disputed but the Court held it to be a donatio mortis causa gift.
The case of King v Chiltern Dog Rescue and Redwings Horse Sanctuary (2015) clarified the requirements for a deathbed gift to be validly made stating that:
- The donor must have contemplated their own death;
- The gift can only take effect if and when the death occurs and until then it can be revoked at any time; and
- The donor must deliver control over the asset to the recipient.
On the face of it the requirements are clear but given the huge variances in circumstances and subject matter donatio mortis causa still results in numerous disputes. In the case of Keeling v Keeling (2017) the donor had a heart attack and decided that she wished to gift her house. She provided the recipient with the keys and the title deeds. However, the Court ruled that it was not a gift donatio mortis causa as: “she did not have a good reason to anticipate death from an identified cause.” The reasoning behind this decision was that the heart attack was the first that she had suffered, she was not so seriously ill as to be hospitalised and she lived for a further six months after the event.
Of course, whether control of an asset has been properly relinquished is also a point where dispute can arise. If a watch is handed to the recipient then the transfer of control is clear. But what if the recipient is only given the means to gain the dominion of the asset? In the case of Re Lillington (1952) the donor gave a key to a box to the recipient. The box contained another key to a safe deposit box and that box contained another key to a different safe deposit box. The last box contained the donor’s jewellery. This was deemed sufficient to constitute a valid gift.
In the more recent case of Sen v Hedley (1991) the Court of Appeal determined that the claimant had received the deceased’s house and contents as a donatio mortis causa gift. The deceased had told the claimant that she wanted her to have the property and that the title deeds were in a locked box in the house. The donor then, unbeknown to the claimant, slipped the key to the box into her handbag. This was sufficient to pass the control of the property and contents to her chosen recipient.
Litigation can be expensive and time consuming. Sometimes the value of the intended gift does not justify the cost of the litigation needed to secure it. With so much uncertainty surrounding deathbed gifts a validly executed Will is by far the best way to ensure that the gifts you wish to make are received by your intended beneficiary.
Share this page with others