However, as these gifts are made when the person
is on their deathbed and extremely vulnerable,
issues can arise with regards to the donor’s
capacity and whether they understood the effect of
making the gift – especially gifts of high value. As
with ensuring the donor had capacity at the time of
making the gift, it would be important to somehow
ascertain that they were not placed under any
undue influence either.
What if I Already have a Will?
Ordinarily, a Will would govern what happens
to assets on a death. Donatio mortis causa is an
exception to that rule, which states that providing
the gift was made in contemplation of imminent
death, it will override anything in the Will or under
intestacy. This is likely to cause conflicts between
potential beneficiaries who are likely to contest the
validity of the deathbed gift.
Challenging a Deathbed Gift
Courts will assess in detail how the deathbed gift
was made and in what circumstances. It will be
upheld only where there is clear evidence that the
conditions for a valid gift are met. However, each
case will be considered on its own facts.
Whilst deathbed gifts are perfectly valid if made
correctly, it is of course better to dispose of your
assets properly by way of a Will which will enable
you to include trusts, set out funeral wishes and
name guardians for minor children for example.
It is important to ensure you review your will
regularly to prevent death bed gifts being made
and then potentially challenged by disgruntled
family members or those who were due to benefit
under the Will. We recommend a Will is reviewed
every 3-5 years or when there is a change of
circumstance such as marriage or children.
To put a Will in place for you or your loved ones,
please contact one of our members today.
the society of will writers
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