In the recent reported case of Keeling v Keeling  the claimant sought to set aside an alleged deathbed gift.
The deceased, Ellen Exler, was 91 years old when she died. Ellen died intestate in 2012. As she had no surviving spouse or children, her siblings Frank Keeling (the claimant), Stephen Keeling (the Defendant), and her deceased sister Lillian Walker's children, inherited her estate. The estate was valued in the region of £1 million and consisted mainly of a house.
Stephen instructed a firm of solicitors to act in relation to the administration of the estate and he was granted letters of administration. Some four months after Ellen passed away, Stephen notified the other beneficiaries that Ellen had gifted the house to him by way of a deathbed gift and therefore it passed directly to him outside of the rules of intestacy.
A deathbed gift, also known as Donatio Mortis Causa, is a gift made in contemplation of death and is a historic exception to the requirements of the Wills Act 1837. In nature it is midway between a lifetime gift and a gift by will - the distinction is that a deathbed gift is made in lifetime but conditional on death, whereas a lifetime gift is effective on delivery.
For a deathbed gift to be valid and binding, the gift must:
- Be made in contemplation of impending death
The donor must have contemplated death within the near future at the time of making the gift. This must be more than a general acknowledgement that he/she will die one day.
- Be conditional on death
The gift must only take effect upon the donor's death. This means that the donor must have been able to revoke the gift if in fact he/she did not die. There is no valid deathbed gift if the donor simply intended to make an outright lifetime gift.
- Be parted with, or delivered to the intended recipient in some way
The donor must part with the property or control of the property that he/she is gifting. It can be by either actual delivery or constructive delivery. For example, if the donor wishes to gift his car, he will either have to pass over the car (actual delivery), or provide the keys or the vehicle registration documents (constructive delivery).
If Stephen Keeling could prove the above, the property would pass to him rather than by the intestacy rules to the other beneficiaries.
Stephen alleged that the gift was a valid deathbed gift because in May 2012 Ellen, after having suffered a heart attack, told him that she wanted him to have the house and passed him the title deeds and keys.
In the circumstances of this case, the court took the view that Stephen gave inconsistent evidence and concluded that there was no deathbed gift. The court noted that even if the alleged conversations between Stephen and Ellen had taken place, the requirements for a deathbed gift had not been satisfied in any event. The judge said:
"In May 2012 Ellen had just had her first heart attack but was not hospitalised. She survived a further six months. She did not in May 2012 "have good reason to anticipate death from an identified cause." In any event, any "contemplated" death in May did not occur: she recovered, so any gift would have lapsed."
It was also noted by the court that the deceased had also not told anyone else about the gift before she died. The judge said, "Whilst one must be cautious about anything Ellen said … given her mental state, that she said nothing about the gift … is striking".
What does this mean?
The courts understandably do not want to encourage potential beneficiaries to fabricate unfounded claims against an estate and, as this case demonstrates, the courts will require stringent evidence to establish that a deathbed gift has occurred.
Given the way in which such a gift occurs there is very often very limited evidence of the gift (the only two witnesses often being the deceased and the recipient), but it could be difficult to resist a claim that the deceased made a deathbed gift if the key elements were present and there was evidence of the promise - in this digital age that could even be a voice recording or video recorded on a smartphone.
However, for a testator concerned to ensure their estate passes as they wish, rather than trying to rely on the doctrine of Donatio Mortis Causa, the safe option is always going to be to execute a valid will.