17 March 2021 | Comment | Article by Sarah Bolt

Davey and Jones v Bailey and Others [2021] EWHC 445 (Ch)

Davey and Jones v Bailey and Others [2021] EWHC 445 (Ch): requirements of deathbed gift not met in completing checklist for planning and providing pre-registration deeds and official copy entries.

The Court decided that the gifts made by a deceased couple were not made by way of donation mortis causa (deathbed gifts). The statements made by the couple indicated how they would like their estate to be distributed were testamentary wishes rather than gifts and the strict requirements of a deathbed gift were not met.

Deceased couple: wife had died in January 2019 from cancer, with her husband passing away in May 2019 from a heart attack. The couple had each executed a will in 2009, appointing each other as the sole executor and beneficiary. Although the husband had visited a solicitor to make a new will after his wife’s death, it was not executed prior to his death. As his wife pre-deceased him, his estate was to pass under the rules of intestacy.

The Claimants were the wife’s sister and brother who claimed that after the wife had come home from the hospital for the last time in January 2019, she had completed a checklist for planning (with the Claimants’ assistance) ahead from MacMillan Cancer Support. The checklist confirmed that the husband was to write his own will, leaving their house to the Claimants. The Claimants also claimed that the husband had informed them that he wanted them to have the house, and gave her the pre-registration deeds and Land Registration office copy entries. The gift of the house amounted to more than 50% of the residuary estate.

In order to make a deathbed gift, there were three requirements: (1) the donor had to be contemplating their impending death; (2) the gift must only take effect on the donor’s death and could be revoked prior to death; and (3) donor must deliver dominion over the subject matter of the gift. Whilst there was no evidence to show the husband had been contemplating his death, this was certainly evidenced for his wife that contemplated her death from cancer. As to the second requirement, it was clear that any gift was conditional upon the wife’s death, it was less clear that any gifts would take effect on her death. Evidence strongly indicated that the couple’s intentions were not to take effect on her death, but it was for the husband to incorporate them into a new will after her death. As such, the second requirement was not made out.

In any event, the Claimants had difficulty in establishing the third requirement as there had been no delivery upon of the subject matter of the gifts. The checklists didn’t amount to a title deed or document showing entitlement to possession of any assets. The piece of paper showed that the couple’s testamentary wishes that had been written.

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