Can death-bed gifts supersede existing Wills?

This question was posed by the recent case of Davey v Bailey [2021] EWHC 445 (Ch), which related to the estates of Alan and Margaret Bailey, who died within a few months of each other in 2019.

Mr and Mrs Bailey had mirror Wills in place appointing each other as the sole executor and beneficiary of each other’s estates. They understood that, following the death of the first of them to die, the survivor would need to make a new Will, and intended that, as they had no children, both of their families should benefit on the death of the survivor of them.

Background to the case

Margaret died first and her entire estate passed to Alan in accordance with the terms of her Will. Alan then died some months later, and, despite making an appointment to make a new Will, he had not had the chance to sign it. Under the terms of his existing Will, no provision had been made for anybody else to inherit his estate in the event of Margaret predeceasing him. This meant that his estate passed under the intestacy rules. Under the intestacy rules, as the Baileys had no children, Alan’s entire estate, including Margaret’s estate which he had recently inherited, passed to members of Alan’s family, meaning that Margaret’s family inherited nothing.

However, Margaret’s brother and sister claimed that Alan and Margaret had both made death-bed gifts to them of large sums of money and a house. So, what are death-bed gifts? And what are the requirements for them to be valid?

What qualifies as a death-bed gift?

A death-bed gift, otherwise known as a ‘donatio mortis causa’, is a gift made by a person in anticipation of their imminent death. When the donor dies, instead of the subject matter of the gift passing to the deceased’s personal representatives, it passes to the person it was gifted to. In order to qualify as a donatio mortis causa, there are 3 requirements which must be satisfied:

1. The gift must be made by the donor in anticipation of their impending death. This is assessed subjectively, depending on what the donor thought, even if they were incorrect.
2. The gift must be contingent on the donor dying. If the donor makes the gift, but then does not die, the gift is revoked. The donor of course has the right to revoke the gift at any time prior to their death.
3. The donor must part with the gift or deliver it in some way. Margaret’s siblings alleged that Alan handed the title deeds to the house to Margaret’s sister in order to satisfy this requirement.

Outcome of the case

The above requirements are very strict, and the judge in the case found that they were not met in respect of the alleged gifts and therefore did not supersede the Wills of Alan and Margaret. The judge held that whilst Margaret had completed a form provided by Macmillan Cancer Support in relation to the sums of money in contemplation of her impending death following her diagnosis with terminal cancer, she had not intended to make a gift by it on her death. The judge held that instead, she was expressing her wishes as to what Alan would include in his new Will following her death.

In relation to the gift of the property, following Margaret’s death, although grieving, Alan was in good health when he gave the title deeds to Margaret’s sister. He died unexpectedly from a heart attack some months later. The gift of the property was not therefore made in contemplation of his imminent death.

The judge expressed sympathy for Margaret’s brother and sister however ruled that Alan’s estate, incorporating Margaret’s estate which he inherited prior to his death was to pass in accordance with the rules of intestacy to members of Alan’s family only.

What can we take from this case?

This case highlights the importance of having a Will in place and ensuring that this is kept up to date and avoids a potential partial or full intestacy. Alan had a Will in place, but as this Will did not make provision for what should happen to his estate in the event of Margaret predeceasing him, his entire estate ended up passing in accordance with the rules of intestacy.

Further, death-bed gifts, whilst in some circumstances they may be valid, are not a safe and reliable way of ensuring that your wishes are carried out on death. This case demonstrates how strict the requirements are for death-bed gifts to be valid and the risks involved with making them.

More information

Click here to read the full judgment online.

How can we help?

If you do not have a Will, or your existing Will no longer reflects your wishes, our Private Client team can assist you with making a new Will or updating your existing Will. We can also assist you with making a Will urgently if you are terminally ill to ensure that your wishes are carried out without the need to rely on death-bed gifts which may later be held to be invalid.   

This article was written by Jessica Newton, Solicitor in the Private Client Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of March 2021.