Deathbed Gifts: Can Someone Give Away Their Property Before They Die?

A person nearing the end of their life may tell a relative or friend that they want them to have their house, savings or another valuable asset.

But is saying “I want you to have this when I die” enough to create a legally binding gift?

Usually, assets passing on death are dealt with by a valid Will or, if there is no Will, under the intestacy rules. However, English law recognises a narrow exception known as a donatio mortis causa, often referred to as a deathbed gift or a gift in contemplation of death.

Where the necessary legal requirements are satisfied, a deathbed gift can take effect outside the deceased's Will.

This can have significant consequences for executors and beneficiaries and, unsurprisingly, alleged deathbed gifts can lead to contentious probate disputes.

At DJF Solicitors Group, we advise individuals, executors and beneficiaries in disputes involving Wills, estates and alleged lifetime and deathbed gifts.

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What is a deathbed gift?

A deathbed gift is a special type of gift made by somebody who is contemplating their impending death.

Its unusual feature is that the gift is made during the donor's lifetime but generally becomes effective on their death.

The legal name is donatio mortis causa, often shortened by lawyers to DMC.  It sits somewhere between an ordinary lifetime gift and a gift made by Will.

Because a deathbed gift can potentially allow property to pass without complying with the formal requirements of a Will, the courts approach such claims carefully.
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What are the requirements for a valid deathbed gift?

Every case depends upon its particular facts, but there are several important requirements.
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1. The gift must be made in contemplation of impending death

The donor must be contemplating their death from a particular reason or danger.

That might, for example, involve serious illness.

A general recognition that everybody will die eventually is not sufficient.

Whether the donor genuinely contemplated impending death will depend upon the circumstances at the time the alleged gift was made.

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2. The gift must be conditional upon death

The nature of a deathbed gift means that it is conditional on the donor dying.

It is not simply an ordinary lifetime gift which happens to have been made shortly before death.

If the donor survives the anticipated danger, a deathbed gift may cease to have effect.

The donor may also revoke the gift before death.

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3. The donor must take steps to transfer control of the asset

Simply saying “you can have my house when I die” will not necessarily be enough.

There must usually be some act by which the donor hands over the property itself or something which gives access to or represents control of it.

The precise requirement depends on the asset concerned.

Historically this might involve handing over keys or title documents. Modern cases have also had to consider how the doctrine applies to bank accounts and digital access.

This requirement can become one of the most disputed parts of a deathbed gift claim.

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Can a deathbed gift override a Will?

Potentially, yes.

That is one reason why these cases can become particularly contentious. An individual might have signed a Will leaving an asset to one beneficiary but subsequently make a valid deathbed gift of that asset to somebody else.

If the later transaction satisfies the requirements for a donatio mortis causa, the recipient may argue that the asset does not pass to the beneficiary named in the Will. However, the mere allegation that a deceased person changed their mind shortly before death does not automatically override their Will.

The person asserting the deathbed gift will need evidence capable of establishing the necessary requirements.

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Can a house be given as a deathbed gift?

In principle, land and property can be the subject of a deathbed gift.

This can produce particularly high-value disputes because the alleged gift may concern the deceased's home or investment property.

A statement such as: “The house is yours when I'm gone.” does not necessarily, by itself, transfer the house.

The court would need to examine exactly what was said, whether the donor was contemplating impending death, whether the gift was conditional upon death and what steps were taken to put the intended recipient in control of the property.

The factual detail can therefore be critical.

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Can money in a bank account be a deathbed gift?

It may be possible, depending on the circumstances.

The development of online banking has created interesting questions about what amounts to giving another person sufficient control over a bank account.

In Rahman v Hassan & Ors [2024] EWHC 1290 (Ch), the High Court considered alleged deathbed gifts involving property and bank accounts.

The deceased died only a few days after the relevant events. Among other matters, the court considered the handing over of documents relating to properties and the provision of information and devices relating to bank accounts.  

The court concluded that valid deathbed gifts had been made in relation to substantial assets, although not every item claimed passed in this way.

The case provides a useful modern illustration of how an old equitable doctrine can interact with online accounts and modern forms of property.

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Can jewellery, cash or personal possessions be given away before death?

An ordinary lifetime gift of personal property may be legally effective where the owner intends to make an immediate gift and transfers the item to the recipient.

A deathbed gift is different because it is conditional upon death.

If there is a dispute following the donor's death, important questions can include:

• What exactly was given?

• What words were used?

• Was physical possession handed over?

• Was the gift intended to take effect immediately or only on death?

• Was the deceased contemplating impending death?

• Did the deceased later change their mind?

• Is there independent evidence supporting the recipient's account?

These issues become especially important where the person alleged to have made the gift can no longer give evidence.

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Why are deathbed gift claims scrutinised carefully?

A deathbed gift can alter who receives an asset without the formal safeguards normally associated with making or changing a Will.

For a conventional Will, the Wills Act 1837 imposes formal requirements intended, amongst other things, to provide evidence that the document represents the testator's intentions.

A deathbed gift potentially operates without those formalities.

There is therefore an obvious risk of disputes where one person says that the deceased privately promised them a valuable asset shortly before dying.

The Court of Appeal made clear in King v Dubrey [2015] EWCA Civ 581 that strict proof should be required in relation to the requirements for a deathbed gift.

Executors should therefore investigate an alleged deathbed gift carefully rather than assuming that it must either be accepted or dismissed.

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What evidence is important in a deathbed gift dispute?

Contemporaneous evidence can be extremely important.

Depending upon the circumstances, relevant evidence could include:

• text messages and emails;

• letters and handwritten notes;

• medical records relevant to the deceased's circumstances at the time;

• evidence from relatives, friends or carers;

• evidence from solicitors or other professional advisers;

• property documents;

• keys and evidence concerning when they were handed over;

• bank cards;

• correspondence with banks;

• electronic communications concerning online accounts;

• previous and subsequent Wills; and

• evidence of statements made by the deceased.

The chronology is often particularly important.

Establishing exactly what happened, what was said and what was transferred in the days or weeks before death may determine whether the alleged gift can be established.

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What if someone alleges that the deceased gave them everything?

Large deathbed gifts are not legally impossible merely because they concern a substantial part of an estate.

However, the more significant the alleged gift, the more important it can become to investigate the evidence carefully.

Executors may need to consider whether the alleged gift is consistent with other evidence concerning the deceased's intentions.

For example:

• Had the deceased recently made a Will saying something different?

• Had they previously discussed changing that Will?

• Who was present when the alleged gift was made?

• Was the recipient involved in the deceased's financial affairs?

• What exactly did the deceased hand over?

• What was the deceased's physical and mental condition?

• Are there contemporaneous documents confirming what happened?

None of these questions necessarily determines the claim by itself. The evidence needs to be considered as a whole.

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Is a deathbed gift the same as proprietary estoppel?

No.

Both doctrines can arise in inheritance disputes, but they are legally different.

A deathbed gift concerns a gift made in contemplation of impending death which is conditional upon the donor's death and accompanied by the necessary transfer of control or dominion.

Proprietary estoppel commonly involves an assurance that somebody will receive property in the future, on which they rely to their detriment.

For example, a parent saying:

“If you stay and work on this farm, it will be yours one day.”

could potentially give rise to proprietary estoppel if the child relies upon the promise and suffers significant detriment.

By contrast, somebody seriously ill handing over documents and saying:

“I want you to have this property if I don't survive.”

may potentially raise questions about a deathbed gift.
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Read our related guide: Can a Promise of Inheritance Be Legally Binding? Proprietary Estoppel Explained
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What if the deceased lacked mental capacity?

Capacity can become an important issue.

The fact that somebody was seriously ill does not automatically mean that they lacked capacity to make a gift.

Equally, if there is genuine concern about the deceased's ability to understand the proposed transaction, the issue will need careful investigation.

Medical records, witness evidence and the circumstances surrounding the alleged gift may all become relevant.

Questions about undue influence may also arise where another person is alleged to have exercised inappropriate pressure over a vulnerable individual.

The precise legal analysis will depend upon the nature of the transaction and the allegations being made.
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What should executors do if someone claims a deathbed gift?

Executors should take care before distributing the disputed asset.

A sensible first step is usually to obtain details of the alleged gift and preserve relevant evidence.

Depending upon the circumstances, this may involve obtaining:

• a detailed account from the person asserting the gift;

• dates and locations of relevant conversations;

• names of witnesses;

• copies of messages and documents;

• information about what property or documents were allegedly handed over; and

• evidence of the deceased's circumstances at the relevant time.

Executors have responsibilities in administering the estate and should avoid distributing property which is subject to a serious unresolved ownership dispute without taking appropriate advice.
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Can beneficiaries challenge a deathbed gift?

Yes.

A beneficiary who would otherwise receive an asset may dispute whether the alleged gift satisfies the legal requirements.

Possible areas of dispute include whether:

• the deceased was genuinely contemplating impending death;

• the gift was conditional upon death;

• the deceased had actually intended to make a gift;

• sufficient control or dominion was transferred;

• the alleged gift was later revoked;

• the deceased had the required capacity; or

• the recipient's version of events is supported by reliable evidence.

Because the deceased is no longer available to explain what happened, these cases can involve detailed reconstruction of the surrounding evidence.

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Do deathbed gift disputes have to go to court?

Not necessarily.

As with many contentious probate disputes, court proceedings may ultimately be required where the parties cannot agree.

However, negotiation, mediation and other forms of alternative dispute resolution can sometimes resolve a dispute without a full trial.

The strengths and weaknesses of the evidence, the value of the disputed property and the legal costs involved should all form part of the strategic assessment.
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Frequently asked questions about deathbed gifts

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Can someone give their house away verbally before they die?

A verbal statement alone will not necessarily amount to a legally effective deathbed gift. The specific requirements of donatio mortis causa must be established, including the necessary element of transferring control or dominion.

Does a deathbed gift have to be written down?

Not necessarily. However, the absence of written evidence can make proving precisely what happened considerably more difficult.

Can a deathbed gift override a Will?

Potentially. A valid deathbed gift may result in an asset passing outside the terms of the deceased's Will.

Can an executor refuse to recognise a deathbed gift?

An executor should investigate the claim and obtain legal advice where appropriate. Whether a gift is legally effective depends upon the evidence and application of the relevant law, not simply upon whether an executor accepts or rejects it.

Can a deathbed gift be challenged?

Yes. Beneficiaries and executors may dispute whether the legal requirements have been satisfied.
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Speak to a contentious probate solicitor

Claims involving alleged gifts made shortly before death can be particularly difficult.

A successful claim may alter the ownership of valuable assets and change substantially what passes under an estate. Equally, an unsupported allegation of a deathbed promise should not automatically displace the provisions of a valid Will.

Early investigation and preservation of evidence can therefore be critical.

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Trusted UK Solicitors | DJF Solicitors Nationwide, including DJF Hoole & Co, advises clients nationally in relation to contentious probate, inheritance disputes, disputed lifetime gifts and deathbed gift claims.

We act for executors, beneficiaries and individuals asserting or defending claims against estates.

Contact our contentious probate team to discuss your circumstances and the options available.

Call us today on 0203 504 9138, or email us at info@djfsolicitors.co.uk to schedule your free initial telephone consultation.

Article by Nicole Nedungadi, Private Client Solicitor at DJF Solicitors

This article provides general information about the law of England and Wales and does not constitute legal advice. Specific advice should be obtained in relation to individual circumstances.

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