Davey & Anor v Bailey & Ors
The recent case of Davey & Anor v Bailey & Ors  EWHC 445 (Ch) has emphasised that the requirements will be strictly and narrowly applied, even where there may be sympathy for the party aggrieved by the strict approach.
Alan and Margaret Bailey, a happily married couple, both died within months of each other at the age of 71 in 2019. They had no children, but their respective families were close and mutually supportive. Margaret’s sister Wendy even stayed with the couple to offer help once Margaret was diagnosed with cancer. Wendy also stayed a few days after Margaret’s death to help Alan.
Margaret and Alan both made Wills on 28 May 2009, appointing each other as sole executor and beneficiary. Evidence from their solicitor confirmed that the couple understood and accepted that the survivor of them would have to make a new Will after the first of them died, as Margaret noted on a Macmillan Cancer Support checklist; “Get Alan to write own will”. The Macmillan checklist also stated “Leslie-Butcher’s” and “Eiron + Wendy equivalent/ Rest 50/50” in the ‘Will’ section. Margaret gave the Macmillan checklist to Wendy, having completed it in the presence of Alan and Wendy on 2 January 2019. Wendy confirmed in evidence that these were wishes expressed by Margaret and that Alan had agreed with them.
Following Margaret’s death, Alan went to his solicitor with a view to making a new Will. He was confident in the gift of the family Butcher’s shop to Leslie, his brother, but “was finding it difficult to decide precisely who was to inherit” the remainder of his estate. Before he executed the new Will, however, he died of a heart attack, only four months after Margaret’s death. Margaret’s estate had passed to Alan and, on his death, his estate passed on the law of intestacy to his siblings and, in the case of his sister Ann who had died before him, to his sister’s children.
Margaret’s siblings were therefore due to receive nothing. They sought to enforce the following purported deathbed gifts:
- two gifts of cash; and
- a gift of the matrimonial home.
The gifts of cash were purported to be made by Margaret to her family on the basis of the Macmillan checklist. The court accepted that Margaret was contemplating her death when she completed the Macmillan checklist. However, the court regarded the subject matter of the gifts to be uncertain and the Macmillan checklist merely indicated her wishes for Alan to consider in making his new Will. Also, there had been no physical delivery of any of these items. As such, the gifts failed on the basis of the second and third requirements outlined above.
The gift of the matrimonial home was purported to be made by Alan to Wendy by means of a gift of a metal box file containing the title deeds and office copy entries following registration of the property. Wendy found documents when assisting Alan with paperwork following Margaret’s death. Wendy asked Alan what he wanted done with the box file and Alan apparently said that Margaret wanted Wendy to have the house and that he wanted the same. Alan said Wendy should take the box file. Alan was distressed following the loss of his wife and the family noted he suffered severe chest pains the day following her funeral.
However, both sides accepted there was no medical diagnosis and the court was not satisfied that Alan made a gift in contemplation of his death. Furthermore, Alan’s intentions were unclear. Alan included the property in his assets when considering his new Will and also made comments to his nephew about selling the property. The court considered that the ‘gift’ of the box file amounted to Alan expressing his intention to gift the property in his Will, rather than a successful deathbed gift. As such, this gift failed on the basis of the first requirement.
The case was heard by HHJ Jarman QC who found that all three gifts failed. This was despite having some sympathy with Margaret’s siblings and acknowledging that there was an intention by Alan and Margaret for both sides of the family to benefit substantially. HHJ Jarman QC observed “such sympathy cannot justify the court attempting to fit the facts into strict legal requirements if objectively those requirements are not made out.”
In reaching his conclusions, HHJ Jarman QC heeded the warning given by the Court of Appeal in a 2016 case where it was said that the requirements for a valid deathbed gift must be strictly and restrictively applied.
Deathbed gifts of registered land
Tantalisingly, HHJ Jarman QC left open the question whether it is legally possible to make a deathbed gift of registered land, a question on which there is no reported authority. For unregistered land, delivery of the deeds is sufficient for the third limb of a deathbed gift. As noted by HHJ Jarman QC in Davey v Bailey, it would be unusual for the practice to differ between registered and unregistered land, despite academic commentary to the contrary. It therefore remains possible that in a future case the delivery of the formal paperwork that a registered owner of land may have in their possession may be held to be sufficient to amount to a valid deathbed gift.
Where a person may be contemplating making use of the deathbed gift rules, it is important to note that: