Death knell for deathbed gifts?

30 Mar 2021

“Davy’s turning handouts down” sang Manfred Mann’s Earth Band on their hit “Davy’s on the road again”. However in the case of Davey vs Bailey [2021]  EWHC445 (Ch), Mrs Davey was trying to establish a “deathbed” handout by her brother-in-law, Mr Bailey, by way of a deathbed gift of a jointly owned property and half of his residuary estate.
Mr Bailey had lost his wife in January 2019 from cancer. Mrs Davey had been assisting in her sister’s care.
Mr and Mrs Bailey had mirror image Wills, but they were only benefitting each other under those Wills, so Mr Bailey contacted his solicitor to make a new Will giving some property to Mrs Bailey’s side of the family, and also recorded his wishes by instructing Mrs Davey to complete a MacMillan Cancer Support Will Checklist form.
Unfortunately Mr Bailey had a heart attack and died in May 2019 before he could sign his new Will, so all his estate passed to his side of the family upon the rules of intestacy.
Mrs Davey put forward that, with regard to a property that Mr Bailey jointly owned, she was handed by him a metal box containing pre-registration deeds and office copy entries, and he prepared the MacMillan Checklist by dictating it to her, whereby half his residuary estate was to go to her side of the family.
To be a valid deathbed gift (usually referred to legally, in Latin, as donatio mortis causa) she had to establish that the gifts were being made in contemplation of the donor’s impending death, the gifts must also have been conditional upon the death of the donor and there must have been a parting with “dominion” over the subject matter of the gift.
In court it was decided that by instructing her to fill in the MacMillan form Mr Bailey may have been thinking of an “imminent” demise, but it was more akin to setting out instructions for a new Will, rather than a conditional gift. The Court also had a great deal of problem grappling with how you give dominion to someone else over half your residuary estate.
With regard to handing over the box containing the property documents, the Court did not consider that Mr Bailey was contemplating imminent demise, as he died of an unexpected heart attack. Indeed one of his nephews gave evidence that he was buying a new car and planning a golfing holiday!
The Court therefore followed previous decisions limiting the effect of the principle of donatio mortis causa, as it was not the Court’s purpose to give force to oral Wills or ineffective attempts to make Wills.
This is another case where the law concerning deathbed gifts has not been enlarged. Deathbed gifts run counter to the need for certainty and formality, and there is a very real risk of abuse, as often the person who alleges a deathbed gift is the one to benefit! Is the bell tolling?
On the other hand, where a person is aware of an imminent death, the law, many say, should support the last wishes, on moral principles, of those not in a position to make a new Will, but possessed of their mental faculties.
The current pandemic has made these considerations more pertinent, but for the time being the court is not amending the scope of the principle, and cases are notoriously difficult to predict as to their outcome.
Let us hope that the Law Commission consultation will outline and clarify the way forward with this conundrum. Certainty vs Freedom of the individual to decide.
Of course, if not more than two years had expired from the date of Mr Bailey’s death, his blood relatives could voluntarily sign a Deed of Variation in favour of Mrs Davey, without any adverse Inheritance Tax consequence for them, provided the necessary tax elections were made. However the likelihood of such goodwill, after a court case, is much lessened!

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