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Deathbed gifts – probate litigation

It is a fairly common scene in films and on television to see a dying person (the Donor), lay in bed and clearly in their final few minutes, speaking with their nearest and dearest (the Donee) and then offering a valuable trinket or other gift and saying that they want the person to have it, usually followed by a dramatic last breath.

This is all fine, but what if the trinket has already been left to someone under the Will or forms part of the residuary estate with the beneficiary particularly keen to get their hands on the gift? What is the situation?

Well, the law of deathbed gifts (or Donatio Mortis Causa as lawyers call them) could come into play in the scenario above. A deathbed gift is one that is made by the donor to the Donee in the contemplation of his/her death with the intention that the gift is to take effect upon the death of the Donor. In the event that the Donor does recover, the gift would be returned to the Donor. If the gift is one that is intended to take effect immediately, irrespective of whether the Donor dies, then the rules on deathbed gifts do not apply and this would be classed as any other gift made during one’s lifetime.

As well as the contemplation of death issue there are also a number of other provisos. The Donor must intend to part with control over the gift, that is to say they must not act in a way that indicates they still have control over the gift. The typical example would be giving the gold necklace in the safe at home but not telling the Donee the combination or giving them the key to the safe. In these circumstances it would be clear that the Donor didn’t intend to give up the gift just yet.

There is also the issue of delivery of the gift. It is a requirement that the gift is delivered by the Donor to the Donee. Depending upon the nature of the gift, the requirements for delivery will change. For example, if it is an item of jewellery then simply handing it over should suffice, whereas in the case of a car, handing over the only set of keys should be enough. The precise requirements do vary for each case.

If you find yourself in a position where a gift is given in a scenario similar to those described above then you should seek legal advice quickly to ensure that your entitlements are not overlooked.

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