Gifts left in a Will take effect only when the legal requirements are met, capacity, knowledge and approval. The person making the Will must also sign the Will in the presence of two independent witnesses. In contrast, there are a few legal rules for a lifetime gift. Unless there is evidence of undue influence, it is likely that lifetime gifts will be valid provided the person understands they are making a gift. A person can also make a lifetime gift that takes effect upon death without any formalities. These are called Deathbed Gifts or ‘Donatio Mortis Causa’ – a gift made in contemplation of death. It is perhaps midway between a lifetime gift and a gift by Will, the distinction being the deathbed gift is made during life time but conditional on death. A lifetime gift is effective on delivery of the gift.
Are Deathbed Gifts valid?
For a deathbed gift to be valid and binding they must satisfy the following:
- Have contemplated impending death when making gift
The donor must have contemplated his/her death within the near future of making the gift. This is usually meant to mean death within a few days.
- Make the gift conditional upon contemplating death
The gift must be made with the purpose that it is a gift effective on death. The donor must have been able to revoke the gift if in fact he/she did not die.
It is important to know that there is no valid deathbed gift if the donor simply intended to make an outright gift during their lifetime.
- Physically transfer the gift to the recipient (the actual delivery)
There must be a handing over of the gift or a release of control of the property that he/she is gifting to an intended recipient.
There is often limited or even no evidence that such gifts have occurred. For someone to ensure that their personal effects pass as they intend, it is always safer to execute a valid Will. Poole Alcock can help you create a Will that protects your loved ones and ensures your estate goes where you want. Call us today on 01270 625478 to get through to our expert team. Alternatively you can visit our Wills and Probate services page here or complete this form for a call back.
