The purpose of a will is to set out how a person's estate will be distributed after their death. But what if somebody gives a gift that will take effect on their death, but isn't recorded in their will? Does it have the same legal status?

The answer is yes – so long as the gift fulfils several legal conditions.

Before we get down to the nitty-gritty, a word on terminology. In law, a deathbed gift is referred to as a donatio mortis causa or DMC. In this article, we'll be using "DMC" and "deathbed gift" interchangeably. We'll also use "donor" to mean the person making the gift.

When is a deathbed gift valid?

A deathbed gift is where someone who is contemplating death gives a gift during their lifetime. The gift will take effect only when they die. Until their death, the gift can be taken back.

However, the validity of the gift depends on three conditions. These conditions were set out in the case of Sen v Headley (1991).

1. The gift must be given "in contemplation of death". The giver must be anticipating death in the near future – but they don't need to know exactly how long they have left.
2. The donor must intend the gift to take effect on her death – when, in legal language, the gift will be "absolute" and "perfected".
3. The donor must deliver the gift (or something that represents it – a key or set of keys, for instance).

Only when all three conditions are met is the deathbed gift a valid DMC. Let's take a look at these conditions in turn.

Contemplation of death

All of us contemplate death now and then – but for a gift to be given "in contemplation of death" requires that the donor expects to die soon. In the case of Craven's Estate (No. 1) [1937], this is "what may be called death for some reason believed to be impending".

There used to be a grey area here: what if a deathbed gift is given in contemplation of death from one cause, but the donor dies from something else?

This was the case with Wilkes v Allington [1931]. The donor gave gifts when he expected to die from cancer, but died a month later from an unrelated case of pneumonia.

The court held that the gift remained valid – and the legal principle remains that the cause of death is irrelevant, so long as the gift was given in anticipation of death in the near future from a known cause.

The gift must be made absolute on death

According to Craven's Estate (No. 1) [1937], there must be a "clear intention to give, but to give only if the donor dies".

A common real-world consequence of this principle is that a gift can be revoked in the donor's lifetime. It becomes absolute only upon their death.

A related question is one of intention. The donor has to express their intention to give a deathbed gift – but this intention doesn't always have to be explicit.

In the case of Gardner v Parker [1818], the donor gave a financial bond with the words "there, take that and keep it" and died two days later. The court held that the donor's intention could be inferred from these words.

If a donor wants a gift to be transferred straight away, they can give an inter vivos (lifetime) gift instead.

Delivery of the gift

The donor must deliver the gift in some way – and they must also express their intention to part with it. In legal terms, they are parting with "dominion, control or possession" over the object.

The item transferred could be the gift itself or something representing it – the key to a locked box, for instance, or a set of car keys.

It doesn't matter if the intention to give the gift and its physical transfer take place on different occasions – but both need to take place (or, in the case of intention, to be inferred from the circumstances).

Scenario

Let's imagine that a woman named Sue is in hospital for surgery. She has a terminal illness – the surgery is expected to extend her life, but not save it.

Her friend Avani visits. Sue says to Avani, "here you go" and passes her a set of keys to her car. Sue dies shortly after from complications arising from her surgery.

At first blush, this might seem like a dubious case. After all, Sue didn't say out loud that her gift was to be given in contemplation of death or that the gift would be made absolute on her death – and she died from complications, not the illness she was in hospital for.

Even so, this would likely be considered a valid DMC. First, the contemplation of death can be inferred from the surroundings – in this case, the fact that Sue gave the gift just before surgery.

Second, even though Sue only said "here you go", and didn't say that she intended to part with the car, it seems clear from her illness that she won't be using the car any time soon and is intending to part with it.

And lastly, the final cause of death is irrelevant. It doesn't matter that she died from complications arising from surgery rather than her original illness.

For these reasons, Sue's gift to Avani is likely to be legally valid.

How about gifts of property?

Property can be transferred as a deathbed gift. This was established by the case of Sen v Headley [1991]. 

Key takeaways

• A deathbed gift is one given in contemplation of death in the near future.
• It isn't mentioned in the will.
• It must meet three conditions to be legally valid:
• it must be given in contemplation of death,
• take effect on the donor's death,
• and be parted with in their lifetime.
• A deathbed gift is different from a lifetime gift.
  
  

Are you looking for legal guidance about wills and probate? At Milners Law, we have a team of experienced probate solicitors who can help you out of the woods. Please don't hesitate to contact us for a free, no-obligation consultation.