Is it possible to make a gift on your deathbed that bypasses your will or intestacy?
The simple answer is yes. There is a little known legal concept which allows a deathbed gift to take effect without the usual formalities for making a will. This is known as Donatio Mortis Causa.
In order for a deathbed gift of an asset to be valid, the gift must be made by someone in contemplation of his or her impending death. The gift must be contingent on them dying and there must be the handing over - or delivery - of the asset itself or the essential items that indicate title to it. There must be the intention to change the ownership of the asset rather than just physical possession of it.
In the recent case of Vallee -v- Birchwood  EWHC 1449 (Ch) the Court held that a Donatio Mortis Causa gift could be made four months before the person died. In that case, Ms Vallee lived abroad and came to England to see her father, Mr. Bogusz. When they were discussing when she would next visit she had told him that she hoped to be over again at Christmas. Her father replied that he might not be alive by then and handed her the deeds to his unregistered property, a key to his house, his war medals and a photo album. Mr. Bogusz died in the December without leaving a will. As Ms Vallee had been adopted out of the family after her mother and Mr. Bogusz’s marriage broke down, she was not entitled to benefit under Mr. Bogusz’s estate.
The Court found that Mr. Bogusz made the gifts because he feared that he was unlikely to live until Christmas. It said that there was no reason why he could not continue to enjoy and occupy the property after making the gift, and the handing over of the deeds and a key was sufficient to diminish his control over it. Her claim was therefore successful. Whilst it would have been far easier for Mr. Bogusz to have made a will leaving the property to his daughter, it is perhaps comforting to know that all is not necessarily lost when that doesn’t happen.
If you have any queries regarding a possible claim against the estate of someone who has died, whether in respect of a Donatio Mortis Causa or otherwise, then please contact our Litigation Team in Honiton.