Deathbed gifts – what are they and are they valid?

Detailing what gifts you want to make when you pass away is usually dealt with by making a will where you can set out all of your wishes. According to the Wills Act 1837, this must be in writing and signed by the testator in the presence of two or more independent witnesses who are present at the same time.

There are circumstances, however, where it is either not possible to make a last minute will or people decide in their last hours that they want to make a final gift. This is recognised formally as a death bed gift.

In order for a death bed gift to be valid and to override the requirements of the Wills Act 1837 the gift must meet each of the following requirements:

1. The maker of the gift must have been contemplating their impending death when the gift was made (not just that one day he/she would die);
2. The maker of the gift intended that the gift would only take effect if and when their death occurred and that otherwise he/she could withdraw it (ie if the maker of the gift did not die then he/she could withdraw the gift);
3. The maker of the gift handed it to the recipient (eg keys to a car or transferring ownership of it) and finally;
4. That the maker of the gift had the relevant mental capacity to make such a gift.

Proving to the courts that all of those steps were taken will be difficult. Unless there is very strong evidence, it would be very easy for someone to challenge that it was a legitimate death bed gift. The safest way to ensure that your wishes are carried out is to make a will and that you keep it up to date to reflect any changes you want to make.

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