Firstly, what is a deathbed gift?

A deathbed gift is a gift made by someone who expects to die very shortly, taking full effect only when that person dies. On death, the gift passes directly to the individual concerned, bypassing the will. There are three conditions which have to exist for a deathbed gift to be valid:

• It must be made in contemplation of impending death.
• It must be made on the condition that the person making it dies. If he makes the gift and then recovers, the gift is cancelled.
• It must be partly given away, for example by handing over a key to a jewellery box, where the gift is the jewellery in the box, or by handing over the title deeds to a house.

What happened in this case?

When Joyce Fairbrother died in 2011, her nephew Kenneth King alleged that his aunt had made a deathbed gift of her house to him. His evidence was that, four months before she died, his aunt had handed him the title deeds to the house, saying “This will be yours when I go”.

Mrs Fairbrother had made a valid will in 1998 which gave the house to animal charities. She had also attempted to make several wills in the months before she died in which she had indicated that she wanted to leave the house to Mr King. These wills were not validly executed.

After his aunt’s death, Mr King claimed that he was entitled to the house by reason of the deathbed gift. The animal charities opposed his claim.

What did the court decide?

In late 2014, the court ruled in Mr King’s favour. His evidence was consistent with his aunt’s attempts, in the months leading up to her death, to leave the house to him in a series of invalid wills. The charities appealed the decision.

Why did the charities appeal the decision?

The charities argued that Mr King – who had twice been made bankrupt and had served time in prison for acting as a company director while disqualified – was unreliable. They said that he had failed to make out his case about the validity of the “deathbed gift”. His story was “too convenient by half” and should not be accepted unless independently corroborated.

It was common knowledge that Mrs Fairbrother adored animals, and that she intended to leave her house to animal charities. This is what she did in her 1998 will, but in the later documents (which were made with Mr King’s assistance), she specified that her house should pass to Mr King in the hope that he would care for her pet dogs. In fact, after she died, Mr King did not follow her wishes but sent the dogs off to a dogs’ home.

In June 2015, the Court of Appeal overturned the earlier decision and ruled in favour of the charities. The court held that Mrs Fairbrother had not made a deathbed gift of her house. Although elderly, she had no reason to expect to die imminently and had both the time and mental capacity to make a new will leaving the house to her nephew if she had really wished to do so. In fact, she did not take either of those steps, and her conversation with Mr King did not give rise to such a gift. The words “This will be yours when I go” were consistent with her intention to make a will in Mr King’s favour but she did not say that she was giving him the house there and then, subject to her death, nor did she mean that. Subsequent events showed that she believed that to achieve this she needed to make a will.

Comment

Jill Waddington, head of private client at Ridley & Hall, says: “Although cases on deathbed gifts are rare, the subject causes real concern to charities in the context of legacy income because, invariably, the only witness is the person who takes the benefit of the alleged gift. It is easy to see that someone disappointed that a relative has left their estate to charity may claim to be the beneficiary of a deathbed gift.”

Ridley & Hall have an expert private client team who can offer specialist legal advice on all aspects of wills and estate administration.