What are deathbed gifts and are they binding?
Many Britons don’t have a will or, if they do, it’s often outdated and no longer reflects their wishes at their time of death. This can lead to the dying person making a deathbed gift. This is a gift of property or assets which take effect on a person’s death and falls outside of their will.
For a deathbed gift to be binding the gift must;
- be made by a person in contemplation of their impending death
- be made to take effect on the death of the donor
- be parted with, or delivered to, the intended recipient in some way
Deathbed gifts, by their nature, are difficult to prove as they are usually made verbally during a very emotional and sensitive time. Consequently, there is usually little evidence to prove the requirements detailed above and therefore establishing that such a gift was made.
The national media has recently covered a high profile case between a brother and sister which highlights the difficulties in establishing a deathbed gift.
Ellen Exler was a 91 year old widow and her brother, Stephen Keeling (aged 86) cared for her and would visit her regularly. Just four days before her death, Mr Keeling arranged for Mrs Exler to move into a nursing home. This was against her wishes and that of the other family members. Mrs Exler’s estate was valued in the region of £1 million which included her family home.
Mr Keeling claimed, four months after Mrs Exler’s death, that she had made a verbal statement gifting him the family home when faced with her imminent death. In addition, he claimed that she had given him the deeds to the home. Mr Keeling explained that Mrs Exler had told him that she would rather him have the family home than anyone else. If Mr Keeling’s claim that this was a deathbed gift had been successful, the property would have passed to him and be left out of Mrs Exler’s estate, therefore depriving the remaining beneficiaries under the will from a share in the sale or rent proceeds.
Mrs Exler’s brother, Frank Keeling, and her nieces challenged the claim brought by Mr Keeling. They produced evidence to suggest that Mrs Exler did not want Mr Keeling to inherit any part of her estate and had used the phrase “he would never get my house, over my dead body.”
The Court upheld that the deathbed gift was never made by Mrs Exler. What persuaded the Court was that Mr Keeling was unable to provide evidence that the conversation gifting him the property had occurred. Mr Keeling was ordered to repay to Mrs Exler’s estate all the rents he had received from renting the family home after Mrs Exler had passed away.
This case demonstrates the stringent evidence required to establish whether a deathbed gift has occurred. These times are often distressing and it is rarely in anyone’s immediate thoughts to try and gather evidence of a promise made by a person on their deathbed. If you are ever in the position where you might be a recipient of a deathbed gift, if possible, try and secure evidence of the promise that was made. This could be a voice recording on a smartphone or a witness statement by someone else that was present at the time.
If you would like help producing or updating your will to avoid similar situations to the one of the Keeling family, contact our wills, trust and probate department on 01752 203500.
If you would like professional advice for contesting a will or claiming a deathbed gift, contact our contentious trust and probate team on 01752 513585.