The Importance Of Making A Will – Deathbed Wishes Must Meet Strict Requirements If They Are Held To Be Valid

When a person dies their estate will pass according to their last made Will or in accordance with the rules of Intestacy when there is no Will. This may create a dispute within the family where a family member was promised an inheritance but has not been included in the Will or, the rules of intestacy prevent their inheritance. Without being mentioned in the Will, any promise made by the deceased will, most likely, be invalid. The exception to this is a deathbed gift, however, there is great caution to be taken when making such wishes.

Davey and another v Bailey and another

The recent case of Davey and another v Bailey and another considered the use of deathbed gifts in the event the Deceased and his late Wife made the applicants a number of promises prior to their death but failed to make a Will confirming the same. The applicants were the family of the Deceased’s late Wife and brought a claim in light of these promises.

The position in law was that the late Wife’s estate passed to the Deceased on her death and the whole estate would then pass according to the Deceased’s last known Will. This Will did not include the applicants and prevented their expected inheritance.

The Court confirmed that the deathbed gifts pleaded by the applicants could be sufficient to alter the distribution of the estate providing they meet the specific requirements to form a deathbed gift. The requirements of a deathbed gift were held to be as followed:

• The deceased when making the gift should have been contemplating his death and have believed his death was in the near future;
• The gift should be clear in that it will only take effect on death; and
• The deceased should deliver over possession, or similar, of that intended gift.

Applying those requirements to this case, the Court found that the gifts did not meet the above requirements. Instead it was believed the comments made were an intention for the deceased to alter his Will to include the applicants, however, as this was never actioned, the gifts fail to form. The Court sympathised with the applicant’s as it was clear the Deceased and his late Wife had intended for the applicants to inherit but failed to act on this. This highlighted the importance of making or amending a Will when considering a change to your wishes.