To pass on your estate when you die you must make a Will which must be properly executed. It has to be written, dated and signed in the presence of witnesses. The Law is quite clear in that. Sometimes however a person facing imminent death may not have made a Will or may wish to change who is to benefit under a Will made many years previously. They want to make a ‘deathbed Will’ and the question can arise as to whether a hastily prepared Will is valid. Alternatively, they may make oral promises as to who they wish to benefit which do not satisfy the requirements of a valid Will. Deathbed gifts (or Donatio mortis causa) can be an exception to the formalities required by the Wills Act 1837
A person at the end of their life may well realise that a Will made many years ago is out of date and wish to revise or revoke it. There is nothing to prevent a Will (or codicil) being made at the last moment providing the testator has the required mental capacity and is not subjected to undue influence. However, quickly drafted Wills can have defects such as not having been properly signed or the necessary 2 witnesses not being present. Arguments over these defects and whether a deathbed Will is valid can often lead to family disputes.
In other cases, a person may believe they are dying and make gifts which have not been included in their Will. If they recover there could be a dispute over ownership of the gift. .For a gift to be a valid it must:
• Be made by the donor in contemplation of ‘death within the near future such as where they are suffering from a serious illness or about to undergo an operation from which they may not recover. Death within the near future’ usually means a matter of days.
• The gift must be conditional on death such as where the donor says ‘if I don’t survive my operation, I want you to have my car’. The gift can be revoked by the donor if he survives his operation and then decides to keep his car. Conditionality can be inferred if the donor was seriously ill, and close to death, at the time when the statement was made.
• The donor must part with dominion over the gift and put it out of his power between the date of the donation and the date of his death. Parting with dominion may involve actual delivery such as transferring a sum of money or constructive delivery by handing over the keys to a car. Where the subject matter of the gift is not capable of delivery.
• The donor must have the necessary mental capacity to make a gift. This is not necessarily as high as for testamentary capacity and for small gifts a relatively low degree of understanding could be sufficient.
If these conditions are met and the donor dies without revoking it, their personal representatives will hold the property on trust for the person intended.