The end game: gifting when time is running out

A death bed gift is a mechanism by which someone can make a gift which will take effect on their death, outside of the provisions of their will or the intestacy rules. 

In order to be a valid death bed gift, three conditions must be met as follows:

• the person making the gift must contemplate their impending death
• the gift must be clearly conditional upon that person’s death actually occurring
• the person making the gift should deliver the subject matter of the gift or the title to it to the intended recipient

Contemplation of death means that the donor makes the gift when they believe they are going to die imminently, which means that they think their death will occur in the near future and of a known cause. This is a subjective test and it will be for the recipient of the gift to prove the donor’s belief at the time of making the gift. If they did think that they were about to die, that is sufficient proof, even if they were incorrect. 

If the donor makes the gift and then recovers, the gift is revoked. 

The donor must give the gift to the recipient in some way, either by delivering the gift or by parting with something which controls the gift, for example the keys to a safe containing the gift. 

In a recent case before the High Court Rahman v Hassan [2024] the deceased owned a UK estate valued for probate at £1.4 million. This included the estate of his wife who died two weeks before him. 

In 2015, the deceased had made a will in which he left his estate to his brother-in-law and nieces, who live in the US. The will named his brother-in-law as executor. 

However, in 2020, when the deceased became aware that he did not have long to live, he contacted a solicitor, who visited the deceased in his home and was given instructions to draw up a new will naming the claimant, a close friend, as sole executor and beneficiary of his estate. Sadly, the deceased died before he was able to sign his will, but on the day of his death, he sent a text message to his solicitor asking that the claimant be the executor and beneficiary of his estate under his new will. He also indicated his intention to revoke all previous wills. 

The High Court decided that on the facts, the deceased had fulfilled the conditions and made a valid death bed gift to the claimant. In his conclusion, the judge stated that that “the whole point about the doctrine of donatio mortis causa is to provide a legal solution to a human need, when other legal institutions do not”. Here, the need was for a gift to be made to a close friend, who provided assistance and companionship to the deceased and his wife in the years before their deaths.

The consequence of the High Court’s decision in this case was that the deceased’s final wishes, communicated to his solicitor via text message, were honoured.

However, notwithstanding the favourable outcome in this case, decisions regarding death bed gifts vary and are largely dependent on the individual circumstances of the testator. In any event, in order to ensure that assets reach intended beneficiaries, testators should take steps well in advance of their death by having a will prepared by a legal professional.  

Emma Reade is an associate in the private client team.