Recent case highlights strict requirements for a deathbed gift

In March 2021, Judge Jarman QC found that three gifts had not been made in contemplation of death in the case of Davey and another v Bailey and others.

Background of the case

The case concerns the estates of Alan and Margaret Bailey. Both died within months of each other and neither had any children. They both made wills dated 28 May 2009 which left their estates to each other. 

Margaret died first. Afterwards, Alan instructed a solicitor, Mrs Jones, to make a new will. However, he did not execute it before he died.

As Margaret died before him, the gift in Alan’s 2009 will to her failed and his estate, including what he had inherited from Margaret, passed under the rules of intestacy. This meant the estate passed to his family and Margaret’s family received nothing. 

The claim

Margaret’s siblings, Wendy and Eiron, claim in January 2019 the couple made gifts in contemplation of their deaths. Wendy also claimed that Alan gifted her the couple’s house, known as Troedyrhiw.  

The court heard evidence from the family as well as Mrs Jones and the Financial Advisor, Colonel Jones, who acted for the couple for many years.

The couple’s estates together were worth £1.76 million. This consisted of their home, Troedyrhiw, two businesses and their premises, three flats, their pensions and other investments. 

The two businesses (a grocers and butchers) were left to Alan and his brother David by their parents. They used to run the business together before Alan bought David’s share. For the past 20 years, Alan’s nephew, Leslie, had run the butchers. 

It was clear that the couple were devoted to each other, and their respective families were close. They all met shortly after Alan’s death and Wendy suggested that their estates, except for the butchers, should be split equally between their respective families as she believed this was the couple’s wish. They all agreed that Alan wanted the butchers to go to Leslie.

How the dispute started

The families remained friendly until David thought Wendy took more property from Troedyrhiw than he had agreed to. That is when a dispute arose.

The couple accepted that when one of them died, the survivor would have to make a new will. This was acknowledged by Margaret on a checklist she was given by Macmillan. Wendy said she completed this form on 2 January 2009 with Margaret and Alan.

Wendy wrote on the form that Margaret had made a will and it was with Mrs Jones. There was also a note “Leslie- Butcher’s” followed by “Eiron + Wendy equivalent/Rest 50/50”. Wendy said she made these notes at Margaret’s direction. 

Under the reference to the will being with Mrs Jones, there was a note “Get Alan to write own will.” Wendy said these words were expressed by Margaret, to which Alan had agreed.

Mrs Jones and Colonel Jones gave evidence that following Margaret’s death, Alan wanted to make a new will. He was certain that he wanted the Butcher’s to go to Leslie but was unsure what to do with the rest. 

The Judge found that the couple did intend, at least from 2 January 2019 onwards, for both sides of the family to benefit from their estates. It was unfortunate that Alan did not live long enough to ensure his will achieved this.

Deathbed gift

Wendy and Eiron claimed that the principle of donatio mortis causa (also known as a death bed gift) should apply. As recognised in King v The Chiltern Dog Rescue & Anor [2016] CH 221, the principle of deathbed gifts enables property to transfer on death without complying with the requirements for a valid will or the transfer of property.

 The requirements for a valid deathbed gift are:

1. The person making the gift must contemplate their impending death for a good reason;
2. The person must intend for the gift to only take effect if and when they died. Until then, they can revoke the gift.
3. The person making the gift delivers “dominion” over the item(s) gifted. 

“Dominion” means physical possession of the item gifted, or a means of accessing it such as a key, or documents evidencing entitlement to the item gifted.

Wendy and Eiron claimed there were three gifts. 

The first was money equivalent to the butcher’s shop which it was claimed was a gift made by Margaret jointly to Wendy for herself and as agent for her brother. It was apparently made in contemplation of her death and became final upon her death. Delivery of the dominion over the gift was effected by Margaret instructing Wendy to complete the Macmillan form in the way she did.

It was also alleged that there was a gift for half the couple’s estate to Wendy jointly for herself and as agent for her brother. Again, it was claimed it was made in contemplation of their respective deaths. It was to become final on Alan’s death. Delivery of the dominion was apparently affected by the couple instructing Wendy to complete the Macmillan form the way she did.

The Judge’s decision

It was accepted that the first requirement (made in contemplation of death) was satisfied. However, the Judge felt that the second limb of the test (intending for the gift to take place upon death) had not been satisfied in respect of the purported gift of the butchers nor half the residue. 

Instead, the Judge found the couple wanted those wishes to be incorporated into a new will which Alan would make. This was supported by evidence that Alan stated that his wife had not made any gifts when he completed the inheritance tax paperwork. Furthermore, Alan told his solicitor Mrs Jones that he wanted the butcher’s to pass to Leslie, which indicates the gift had not already taken place.

The Judge also felt that neither of these two purported gifts satisfied the third limb as there was no delivery of the subject matter or means of access to it. The Macmillan form was not sufficient; it was just a piece of paper which expressed testamentary wishes.

The third purported gift was in relation to the couple’s home, Troedyrhiw. Wendy gave evidence that she was helping Alan sort out paperwork after Margaret’s death. She found a metal box which contained papers relating to the house. Wendy asked Alan what to do with it, and he replied that Margaret wanted her to have the house and he wanted that to, so Wendy should keep the file.  

Although there was no medical diagnosis which caused Alan to expect his impending death, Wendy claimed that Alan contemplated his death. After Margaret’s funeral Alan had severe chest pains. His medical notes also showed he suffered from ongoing back, hip and feet trouble, and was prescribed medication for stomach acid. He was also distraught at the loss of his wife. 

However, Leslie gave evidence that the heart pains were heartburn as a result of too many whiskeys at his wife’s wake. Furthermore, Alan was not contemplating his death as he was looking forward to a golf trip abroad, his nephew’s wedding and bought a new Mercedes car. He also told Leslie that he was thinking of selling Troedyrhiw. 

The Judge therefore concluded that Alan was not contemplating his death, which was caused by an unexpected heart attack. As this requirement was not fulfilled, Wendy’s claim that Troedyhiw was gifted to her on Alan’s deathbed failed. 

The Judge concluded by giving the same warning as a previous Judge is King v Chiltern had, in that if the strict requirements are not met, the gift would fail. 

This case highlights the strict requirements for a deathbed gift. If you would like advice about a potential deathbed will or a probate dispute then please contact our contentious probate solicitors who will be able to advise you. 

I can be contacted on 01206 217307 or lisa.cox@birkettlong.co.uk.