Davey v Bailey and the case against deathbed gifts in the UK

Covid-19 has driven many people to think carefully about how they want their estate to pass following death.

The best means of ensuring that wishes are followed is to make a valid will. However, circumstances don’t always allow for the proper formalities to be completed in time. In particular, with Covid-19 lockdowns, access to professional advisers and arranging for documents to be formally signed has been very difficult.

The law allows for the legal formalities of giving via a will to be dispensed with where gifts are made in anticipation of death. These are often described as ‘deathbed’ gifts (or by the legal term donationes mortis causa).

What are ‘deathbed’ gifts?

Deathbed gifts are a means of making gifts that will become effective on death but without complying with the strict requirements of the law. The most common circumstance will be individuals that are seriously or terminally ill, those about to undergo major or risky surgery or those with other concerns about their imminent death.

The requirements for deathbed gifts are:

  1. The gift must be made in contemplation of death. The donor must anticipate that they do not have long to live due to an identifiable cause, though there is no requirement for the donor to be in hospital or for death to be inevitable.

  2. The gift must be made with the intention that the property will pass on the donor’s death, as opposed to during their lifetime.

  3. The gift must be given or ‘delivered’ physically. Either the gift itself or something representing the gift must be delivered by the donor or by their authorised ‘agent’.

  4. The gift must be made in contemplation of death. The donor must anticipate that they do not have long to live due to an identifiable cause, though there is no requirement for the donor to be in hospital or for death to be inevitable.

  5. The gift must be made with the intention that the property will pass on the donor’s death, as opposed to during their lifetime.

  6. The gift must be given or ‘delivered’ physically. Either the gift itself or something representing the gift must be delivered by the donor or by their authorised ‘agent’.