“Deathbed Gifts” Really Don’t Work! Make a Will!

Deathbed Gifts Don’t Really Work! Make a Will!

In order for a Person in England to leave property on Death, the Law says, you must make a Will.

In order to make a Will then unless you are in the Armed Forces in “Actual Military Service” you need to have your Will in writing and not sign it until two other people are present, then you sign first and your witnesses each sign. Each of the three signatures must be made with the other two persons watching. There is one way of getting it right, and unlimited ways of getting it all wrong!

[Just one example – Will maker signs alone at home. Then goes next door to see the Neighbour – please will you sign here to “witness” my Will. Then gets the next signature from a work colleague the next day. Amazing – and wrong.

OK another one. W invites two neighbours round. “Watch me sign my will. OK, done that. Now whilst you both sign, how about I go to the kitchen where I can’t see you and make us all a nice cup of tea.” [Better, but wrong.]

There are more ways to get it all wrong. How about leaving “everything  to Bill” and  then you ask Bill, or his wife, to be one of the two witnesses. D’oh.

So maybe the message is clear, don’t make your Will on your own. Get your Solicitor to do it for you. If you don’t have one I can recommend a Solicitor. If you have a Charity you want to benefit from your Will after you die, the Charity might even be willing to pay your Solicitor’s fees now. Contact me.

I suspect that everything I have said, you already know.

If you are sensible, you know you need a Will. Just not yet, maybe? Hmm.

I have a client who genuinely (I think) believes that if he makes a Will he will die straight away. So in effect it’s not having a Will that is keeping him alive. In fairness, he is still alive so to that extent the plan is working!

For others who are delaying making their Wills, there is often the straw to be clutched at, of the so-called “Death Bed Gift”. Basically, the belief that “I can just gather the family round and dish out the goodies from my hospice bed, when my time comes”.

Leaving aside the obvious, that Death can come suddenly and unannounced, there is another flaw in this thinking. Which is that the Law in England has just taken a sharp turn against the whole concept of being able to make valid Deathbed gifts.

A couple of years ago there was a case where such a gift was found to be valid. A lot of learned Lawyers felt the case was wrongly decided, and have been waiting for another case to enable the Courts to review the situation.

“Donatio mortis causa” is the tag lawyers give it – literally, “Gift because of death”, from Latin, and the concept is one going right back to Roman Law of biblical times. I refer to it as, DMC.

Now, it seems to have been made much clearer with a case this year, that a DMC is becoming almost impossible.

If you are interested in the relevant law here is a link to the Court case this year where Mr King lost [on Appeal] his claim that his late aunt had before her death effectively bequeathed her house to him by DMC, without making a valid will.

The reasons the concept of DMC seems to be embedded in the public consciousness seem to me to be similar to that other general belief in something that doesn’t exist, the “common-law Marriage”.

People generally think it right that a person’s “dying wishes” should be honoured. But is that really anything more than a form of sentimentality? Why should someone who couldn’t be bothered to make a Will in the long years of their health have any notice taken of their last words, – the hard-hearted lawyers ask?

Problem with DMCs is, there is nothing in writing. The safeguards provided by disinterested witnesses are absent (usually the DMC is “All this is yours now Sonny Jim, I’m a goner” – said with no other witness to the words than SJ himself)

Also what if the deceased had earlier made a valid written Will and then on the deathbed overturned it by the spoken words of the claimed DMC? The Will was made after a couple of visits to Solicitors and after considered discussion, and it was witnessed, followed by a DMC spoken when perhaps in pain (or on morphine) or in a state of fear and with nothing written down and maybe even no other witnesses.

The DMC concept I suspect has run its course and English Law is leaving it behind. And in part it may be because of our digital age.

Another necessary element of a Valid DMC, is to hand over at least a symbol of what is being bequeathed. Typically – “Here you are, It’s the deeds of my house, I’m dying now, I want you to have it after I go.”

Well that’s not going to work in England thirteen years after Deeds were abolished. We are all virtual now. Maybe a key to a house would do it, but I doubt it. A key to a house isn’t ownership like Deeds are – it just enables you to get in to nurse the patient, that is to say, you need the key anyway but you don’t need Deeds for any purpose except for a DMC.

[I think that in Richard Thompson’s wonderful song link here , the DMC of the 1952 Black Lightning would be OK, “He reached for her hand and he slipped her the keys He said I’ve got no further use for these” because James handed Red Molly the keys when he knew he was dying and as she had never ridden the bike herself before except pillion, clearly it was a symbolic gift of the bike itself]

Maybe handing over the passwords to the Online Bank account could do it? Perhaps.

But it seems to me clear that the Courts think that DMCs as a legal concept belong to the past and we are all literate now and if we want to leave stuff after we go, we must make Wills. And since we don’t know when we will go, best make them today

Or tomorrow. Surely we’ve got until tomorrow? Again, Hmmm.

Please contact me or Louise, we are here to help. And in particular whenever you have a legal issue which has any foreign element – At notary@atkinsonnotary.com or phone us  +44 (0) 1138160116