What is a Death Bed Gift?
A Death Bed Gift known as donatio mortis causa is a gift made in anticipation of death and not a gift in a person’s Will. It applies where the donor (the person making the gift) has made a gift of money or property to take effect on their death.
Death bed gifts are open to abuse by the dishonest. They can also be very difficult to determine and are often open to challenge.
What are the criteria for a valid Death Bed Gift?
To be an effective Death Bed Gift, the following criteria must be met:
- The gift must be made by the donor in contemplation of the donor’s impending death.
- The donor must have contemplated that his/her death is in the near future. It is not enough for him/her to acknowledge that they will die ‘one day’.
- The gift must be contingent on the donor dying; the donor must have intended the gift to only take effect on his/her death. It must therefore be possible for the donor to revoke the gift if he/she did not go on to die. Caution must be taken not to confuse a Death Bed Gift with a gift intended to be made during his/her lifetime.
- The donor must part with the gift or deliver it in some way to the donee; the donor must part with the property or the control of it. For example, if the donor wished to gift a motorbike; he must have passed over the actual motorbike or given the keys and registration documents.
- The subject-matter of the gift must be capable of being given away in this manner.
Other considerations
If the above can be satisfied then on the donor’s death the subject matter of the gift will pass to the donee and not to the donor’s personal representatives. It is important to note that although not included in the list of criteria above, the donor must have mental capacity at the time of making the Death Bed Gift.
Can a Death Bed Gift be challenged?
Yes. Beneficiaries either named in the donor’s Will or entitled to a share of the estate under the Intestacy Rules could challenge the validity of a Death Bed Gift as the likelihood is that a valid Death Bed Gift will reduce the amount that they are due to inherit.
Similarly, a Local Authority may decide to challenge the validity of a Death Bed Gift where the donor has left a surviving spouse or civil partner who was due to inherit the donor’s estate but there is now less provision for them under the Will or Intestacy Rules because of the Death Bed Gift. The Local Authority could bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975 to set aside the Death Bed Gift if the surviving widow or civil partner needed to rely on the Local Authority for assistance with paying care home fees.
Of course, creditors can also challenge Death Bed Gifts arguing that the subject matter of the Death Bed Gift should have formed part of the donor’s estate and therefore be available to pay off any debts.
Conclusion
As you can see Death Bed Gifts are considered to be very much a ‘grey area’ of the law, open to challenge by various parties and abuse by others. Many challenges to Death Bed Gifts end up before the Court for a decision to be made as to their validity. This is a very costly and time-consuming process.
Therefore, to avoid this uncertainty and stress for personal representatives and family members following the donor’s death, I would encourage anyone who is facing imminent death to speak to a Solicitor as a matter of urgency to make a Will that deals with their wishes (providing they have the capacity to do so).
If you would like more information, please contact Charlotte Day on 01530 564 498 or c.day@timms-law.com