Can You Dispute a Deathbed Gift?

Written by Tanya Waterworth, Digital Content Writer

About Our Legal Expert: This content is produced with oversight by Michael Jefferies, Managing Director who has over 30 years’ legal experience.

What Counts as a “Deathbed Gift” in England & Wales

If you suspect the validity of a ‘deathbed gift’, commonly known as donatio mortis causa (DMC), your next question may be ‘can you dispute a deathbed gift?’. In law, this type of gift is made by someone who is contemplating impending death i.e. in the near future. It takes effect on the donor’s death. However, deathbed gifts are uncommon and are subject to strict legal conditions.

So, if you believe a DMC may be invalid, such a gift can be disputed by the beneficiaries or other parties who may have an interest in the loved one’s estate by bringing a contentious probate claim.

We partner with highly experienced contentious probate solicitors who offer a range of fee structures, including No Win No Fee agreements. So, take the first step and contact our team today for a free consultation to have your case assessed.

The legal tests

The essential legal tests for a deathbed gift may include:

Contemplation of imminent death

The donor must have made the gift because they genuinely believed death is imminent and not simply a remote possibility). This expectation must be linked to an illness or specific reason.

Conditional on death

The gift is conditional, which means it only becomes final if the donor actually dies. If the donor survives, the gift may be revoked.

Delivery / transfer of control

There must be delivery of the item or something that represents control over it, for example, handing over keys to a car, a property deed, or identity document. This shows that the donor intended to hand over immediate control.

Essentially, a deathbed gift requires strict proof of intention and transfer.

When can you challenge a deathbed gift?

You can challenge a deathbed gift on many of the same grounds used to challenge or contest a will. The typical grounds are:

1. Lack of the required legal elements

Contest that the donor didn’t meet the legal criteria. This may include no genuine contemplation of imminent death, no conditionality, or no effective delivery. In terms of evidence, this may include  witness statements, hospital records, letters or emails and the item’s custody record.

2. Lack of testamentary capacity (incapacity)

If the donor lacked the mental capacity to form the necessary intention. Examples of when a gift may be questioned include if the donor suffered from dementia, delirium, drugs, shock. Medical records and expert reports are vital in this regard.

3. Undue influence / coercion

If someone pressured or coerced the donor into making the gift, for example a carer or family member exerting pressure or influence when the donor was susceptible, the gift may be set aside. Evidence to prove undue influence may include showing opportunity for the influencer, circumstances which raise red flags, or a link to the donor’s decision.

4. Fraud or forgery

If documents or signatures purporting to transfer property are forged or fraudulent, the transfer may be voided. Important evidence may include forensic evidence, handwriting experts or records of possession of the item.

5. Inheritance Act claims

Even if a deathbed gift is valid, the loved one’s dependants can still apply under the Inheritance (Provision for Family and Dependants) Act 1975 to seek reasonable financial provision from a loved one’s estate. That challenge would be separate to invalidating the deathbed gift.

What evidence do you need?

• Act quickly. Evidence may be compromised, for example witness memories fade; medical records get archived and difficult to locate). While some claims, such as lack of capacity or fraud do not have a strict six-month limit, Inheritance Act claims typically must start within six months of the grant of probate unless the court permits otherwise.
• Gather evidence. Hospital documents, GP records, nursing notes, photos, text messages, and from any  independent witnesses, such as the GP or close friends are gold.
• Expert reports. Medical experts on capacity and forensic examiners for documents may be crucial in court.

Chances of success

Deathbed gifts are challenging. Courts are careful with these as a DMC may be a genuine act carried out in an informal manner, but which truly reflects a donor’s last wishes. Successful challenges need to have to have strong evidence (medical records showing incapacity, credible witness testimony disproving delivery, or obvious red flags of coercion or fraud).

What to do next if you suspect an invalid deathbed gift

1. Get early legal advice from a specialist contentious probate solicitor. They are able to assess whether you have a capacity/undue influence/Inheritance Act claim.
2. Preserve evidence: act promptly and request medical records, contact witnesses from the executor and keep all relevant items (keys, documents).
3. Consider options: to save time and costs, your solicitor can mediate and help you to negotiate with the recipient

Act Today

If you think a deathbed gift is invalid, act quickly, gather evidence, and seek specialist contentious probate advice for your next steps.

We can connect you to an experienced contentious probate solicitor who can help you today.

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