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Death Bed Gifts – Can dying wishes be challenged?

Often when dealing with will or beneficiary disputes we hear claims of the deceased, in their final days, telling their family and friends what they want them to have when they die, even if this contradicts their will or the intestacy rules.

If someone is or believes themselves to be close to death they may not have the time or energy to make or change a will but they still want to make specific gifts – can it be done?
The short answer is yes – how it is done is more complex.

In order for a death bed gift to be valid three conditions need to be met:

  1. It must be made in contemplation of death in the near future
  2. It is dependent on the donor dying and is revocable at any time
  3. There must be some giving over of possession of the item or things to indicate that the ownership will change on death.

Valid death bed gifts

Re Craven’s Estate [1937].  The deceased was having an operation and knew there was a high risk that she would not survive. She told her son and notified the bank of accounts which were to go to him should she die, which she did. Her conduct in notifying the bank was sufficient to show that she had parted with possession of the accounts.

Sen v Hedley [1991] four days before his death the deceased gave the recipient the only key to a box holding the deeds to his house telling her that the house was hers when he died. The giving of the only key to access the deeds was sufficient to show that he had given her possession of the house.

Invalid death bed gift

King v Chiltern Dog Rescue [2016].  A nephew claimed a death bed gift of his aunt’s house, contradicting her will. On appeal it was held that the aunt, despite writing notes in which she said that she wanted her nephew to have the house, had not been in contemplation of her death when she gave him the deeds to her house, as, whilst she was elderly and happened to pass away six months later, there was no evidence to indicate that she was contemplating an imminent death. She had the opportunity to either write another will or to formally transfer the house to him. The gift failed as simply being elderly, infirm and knowing that your time is naturally limited is not enough to show contemplation of death in the near future.

Valid death bed gifts are rare and after King the conditions will be applied rigidly. To limit the chance of a gift failing we would always recommend you take legal advice and make a will.

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Nick Rhodes

Partner and Head of Wills & Probate
Wills & Probate
0113 227 9247
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Nick Rhodes Black Solicitors LLP