Death bed gifts can be a legal minefield if loved ones dont leave a will behind

Death can be a tragic and uncomfortable subject for most of us, and sadly more families have lost ones during the global pandemic.

Many households have found they have had to deal with the death of a loved one suddenly or that those closest have become critically ill.

Interest in death bed gifts has also risen, however, they may be a legal minefield.

As the name suggests, a death bed gift is something given by a person who is on their death bed. It is also known as a donatio mortis causa or DMC, writes The Mirror.

During the pandemic, many people found themselves suddenly thrust upon their death beds before they expected themselves to, which left them scrambling to leave people last-minute gifts, especially if they want to give assets to people not mentioned in their wills.

While ideally, a person should have a will to pass on their assets, the law accepts that in certain circumstances it is difficult to amend a will at the last minute.

In such scenarios, a death bed gift can be given as long as it satisfies a few necessary conditions.

These are the four essential requirements for a death bed gift:

  1. The maker of the gift was contemplating their impending death when the gift was made.
  2. The maker of the gift intended that the gift would only take effect if and when their death occurred and that otherwise it could be revoked.
  3. The maker of the gift delivered the gift to the recipient (by handing over the deeds to a property for example).
  4. The maker of the gift had capacity to do so.

Needless to say, a lot of uncertainty and interpretation surround these four points, especially when a gift is challenged.

There have been many examples in the courts where the gift has not been deemed a valid DMC. These reasons range from the beneficiary's inconsistent story to the view that the deceased didn't actually believe they were going to die at the time of giving the gift. There have also been cases where the gift has been invalidated because the deceased had an opportunity to make a will but refused to do so.

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That said, some cases are very simple. For example, one involved a close friend receiving a gift three days before the death of the gifter. Before his death, she had asked him what would happen to the house and he stated: "The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box." This was judged to be a valid DMC.

Also interesting to note is that a cheque to be cashed after death isn't a valid death bed gift (as the bank will not honour it), and a gift can be revoked anytime before the person's death – after all, it's not a contractual promise.

On the unusual legal subject, Martin Holdsworth, founder and director of IDR Law, said: "The cast iron advice is always to get a will done if at all possible and a DMC is very much a last-ditch option as they are very often challenged by those who would have benefited under any existing will.

"We’ve seen DMCs of houses, cars and even pets. Going forward, you can imagine DMCs extending to cryptocurrency accounts and bank accounts. Courts don’t like them as a general rule of thumb.

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"There is no doubt that the Covid-19 pandemic lockdown limitations have resulted in more limited access to legal advisors drafting wills – in desperate times, desperate measures have increased with the number of attempted death bed gifts rising in recent times – we have advised several families on claims and defences arising from such gifts.

"Death bed gifts trump existing valid will provisions in relation to the asset gifted – for this reason, the courts have made it very clear in a court judgment given mid-pandemic that the courts will only deathbed gifts if they satisfy a series of strict and narrow requirements.

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"Even then, as these death bed gifts are often made by those most vulnerable, challenges to their validity on the grounds of lack of mental capacity and undue influence commonly follow.

"I understand entirely why deathbed gifts are attempted in difficult circumstances, but I would always advocate a quickly prepared professional will should be used whenever possible."

For funeral notices in your area visit funeral-notices.co.uk

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