The High Court has provided some useful guidelines on what is required for a person’s statements to be legally classed as ‘deathbed gifts’ in inheritance cases.

The court was asked to determine the proper distribution of the estate of a married couple. The wife died in January 2019 of cancer and the husband died of a heart attack shortly after in May 2019. The couple had each executed a will in 2009 that appointed the other as sole executor and sole beneficiary.

Although the husband visited a solicitor after his wife’s death to make a new will, it was not executed before his death. As his wife had died before him, his gift to her under his 2009 will no longer applied, and his estate, including that which he had inherited from his wife, passed under the law of intestacy to his next of kin: his brother, his sister, and the children of a sister who had predeceased him.

The wife’s sister and brother claimed that after the wife had come home from hospital for the last time in January 2019, she was given a checklist for planning ahead by Macmillan Cancer Support which the sister helped the couple to complete.

The checklist included handwritten notes by the sister about what was to happen to the couple’s estate, which suggested a shop owned by the husband was to go to his nephew and that the claimants (the brother and sister) were to get an equivalent amount to the shop and 50% of the residual estate.

The checklist also included the note “Get [the husband] to write own will”. They further claimed that in February 2019, the husband told the sister that he wanted her to have his house, as that is what his wife would have wanted.

The court dismissed the claim that the couple had made deathbed wishes.

It held that the legal principle of donatio mortis causa, deathbed wishes, was an anomaly which enabled the transfer of property upon death without compliance with the formalities of the Wills Act.

It said that for a donatio mortis causa to be established, the donor had to be contemplating their impending death and the gift must only take effect on the donor’s death and could be revoked prior to death.

Although there was no evidence to suggest the husband had been contemplating his impending death, the first requirement of donatio mortis causa was made out as far as the wife was concerned, as she had been contemplating her death from cancer.

As to the second requirement, the evidence strongly indicated that the couple’s intention was not to make gifts to take effect on the death of one or the other of them, but to express wishes which the husband would incorporate into a new will after the death of the wife. Thus, the second requirement was not made out. If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 02080040065, by email at [email protected] or using the form below.

Case Citations: Davey v Bailey [2021] EWHC 445 (Ch)

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