There are a number of conditions for the gift to be valid:
- The gift must be made with the belief that death is impending in the near future – typically this means a few days (Re Craven’s Estate (No 1) )
- This belief must exist for a reason (for example, because they are suffering from a serious illness or about to undergo a risky operation).
- Deathbed gifts must be conditional on death. For example, the donor might say “if I don’t survive the week, I want you to have my holiday cottage in Cornwall’.
- The donor must part with dominion over the subject matter of the gift. “The donor must put it out of his power between the date of the donation and the date of his death to alter the subject matter of the gift and substitute other property or chattels for it.” (Re Craven’s Estate Farwell) This could mean actual delivery (for example, giving someone cash) or constructive delivery (for example, giving someone keys or title deeds).
- The donor must have mental capacity to make a lifetime gift. The standard for this is not as high as for making a Will where the gift is trivial. However, if the donor is giving up the bulk of their estate, the degree of mental capacity will be the same as for making a Will (Re Beaney ).
- Deathbed gifts can be revoked – either because the death does not materialise (so it is revoked automatically) or because the donor makes the choice to revoke it before their death.
- If the donor does not use conditional wording (for example ‘this house is yours, Margaret’ – Sen v Headley ) the court is willing to infer the conditional wording, provided that the donor was seriously ill and close to death when making the statement.
- If the above conditions are met, provided that the gift is not revoked before death, the donor’s personal representative will hold the gift on trust for you.
In the case of King v The Chiltern Dog Rescue, the claim that a deathbed gift was made failed, because the person who allegedly made the gift – June Fairbrother – was not contemplating her impending death. She had no serious illness or forthcoming operation, and she could easily have remade her Will if she wanted to. However, the claimant – Ms Fairbrother’s nephew – also made a claim under the Inheritance Act and was awarded £75,000.