It’s not a pleasant subject, but during these uncertain and unprecedented times, many people’s thoughts turn to what happens to our possessions and property when we die particularly if promises have been made to loved ones.
For a gift to be effective, a properly drawn up Will is essential. However, some people rely on a conversation with an intended recipient, sometimes when they anticipate death, which can become confusing and problematic for the deceased’s estate.
What happens to our possessions when we die?
When someone passes away, usually, one of two things will happen to their estate. A person, usually a close relative, will act as the Personal Representative of the Estate and is responsible for the estate
If there is a Will, you can choose who you wish to be appointed as your Personal Representative or your “Executor” . This person is responsible for administrating the estate and deal with any instructions left in the Will, including distributing the gifts specified by the deceased.
The other is, if there was no Will created, the estate is subject to the ‘intestacy rules’. Only direct family can inherit under intestacy rules and there is a strict order of priority. The rules also dictate who has authority to act as the Personal Representative and deal with the possessions and property.
However, there is an unusual third option that can affect certain possessions or property and override any instructions left in a Will regarding them. This is referred to as a deathbed gift.
What is a deathbed gift?
A deathbed gift is where a person, referred to as the ‘Donor’, makes a gift to another person, referred to as the ‘Donee’, with the intent that the gift will be granted upon their anticipated death.
The law states that the Donor must understand that they will die in the near future. Whilst the Donors death does not need to be inevitable, there must be good reason to anticipate their death in the near future from an identifiable cause, such as a serious illness, risky operation or dangerous journey. Approaching the end of a person’s natural life span may not necessarily be enough for the purpose of a deathbed gift.
However, for a Donor to leave a gift to the Donee, they must do more than indicate the intent of the gift on their deathbed. The Donor must offer a token or representation of the intended gift. In past cases, we have seen tokens such as keys to jewelry boxes offered, title deeds to land and documents relating to bank accounts as representations of intent.
Complications with deathbed gifts
As you can imagine, the law surrounding deathbed gifts, officially known as donatio mortis causa, can cause controversy, especially for the Personal Representatives of a deceased estate. Confusion, conflict and even legal action can arise between family members and loved ones, due to deathbed gifts.
Gifts left by a dying relative, that are not outlined in a properly drafted Will, are often challenged, and expensive court battles can ensue. Often the mental state of the deceased, the misrepresentation of the gift, the fact that no witnesses were present and suspicion of undue influence on the donor, are often argued in court.
If the Doner survives their illness, the intent of the deathbed gift is void, and the Donee will not receive the gift.
How to efficiently leave a gift
To prevent complications arising and ensure that all your wishes, including intended gifts, are fulfilled, a valid and professionally drafted Will is needed. A Will includes all your intentions for your estate after death and it nominates an appropriate person to act as the Executor of your estate. A Will helps prevent any confusion or arguments regarding your decisions. Furthermore, a properly drafted Will ensures that your decisions are legally binding and that your family will not face any legal costs after you’re gone, challenging the validity of your Will.
To ensure that you have a legally binding Will it is best to not opt for a DIY Will, but to instruct a Solicitor, with a strong reputation for estate planning, to draft your Will. The process is simple, straight forward and a basic Will is not as expensive as you might think.
Considerations for your whole family, all your property and possessions will be considered, and you can even leave instructions for your funeral and make decisions for any pets you may leave behind. However, it’s important to review your will regularly, to avoid the problems caused by making late gifts to individuals.
To discuss your specific situation with our wills, trusts and probate team you can call our enquiry team and make an appointment. We offer fixed fees on most of our matters and flexible appointments to suit your needs. If you can’t make it into the office, we offer telephone appointments.
You can email Howells to make an appointment at firstname.lastname@example.org, visit our website or call us:
Sheffield: 0114 249 66 66
Barnsley: 0122 680 51 90
Rotherham: 0170 936 40 00