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Deathbed gift of a property not revoked by a later attempt to make a Will


In the recent case of King v Dubrey & Others [2014] the High Court has held that a donation mortis causa (“a DMC”), also known as a deathbed gift, was not revoked by the donor’s later attempt to make a Will dealing with the same property.

What is a Donation Mortis Causa ?

A DMC is an exception to this.  It is a gift which an individual (the donor) makes immediately before they die, a deathbed gift  and which takes effect upon their death. If four conditions are satisfied, the gift can take effect without the donor needing to make a Will and despite the donor having a previous Will which would deal with that asset. The four conditions which have to exist for a gift to qualify as a DMC are as follows.

The gift must be made by the donor when they believe that their death is impending;

The donor must part with the gift in some way, either by actually delivering the gift or by handing over something which controls the gift (for example, title deeds to land or the key to a box where the gift is stored); and

King v Dubrey involved an elderly lady who allowed her nephew to live at her house rent free. The nephew alleged that this had been in exchange for him providing her with care. The nephew also alleged that his aunt had gifted the property to him by way of a DMC. He claimed that his aunt had, in the four to six months before she died, handed him the title deeds to the house (which was the main asset within her estate) and said words to the effect of “This will be yours when I go”.

After the aunt’s death, the nephew claimed that he was entitled to the house by reason of the DMC.  The animal charities opposed his claim on a number of grounds including, that the aunt had lacked sufficient capacity to make the DMC, the words used had not suggested that the gift was conditional upon her dying and that the aunt was not contemplating death when she made the gift; she was not seriously ill, just elderly. The charities also alleged that the nephew was not a credible witness due to him having a history or fraudulent behaviour.

Reported cases relating to DMC’s are relatively uncommon and are therefore helpful in confirming and elaborating on the requirements for a DMC.

Clarion’s Disputed Wills, Trust and Probate team are always happy to have an initial chat if you require advice or assistance following the death of a loved one or family member. Please therefore feel free to contact me, Louise Dodds or call the team on 0113 246 0622.

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