In the recent case of Keeling v Keeling, Stephen Keeling claimed his widowed sister, Ellen, gifted him and his wife her unregistered property. She died intestate. Stephen then took out a grant of letters of administration and later informed the other beneficiaries that Ellen had handed him the deeds and keys to the property, stating that she wished him and his wife to have it.
This was disputed by the other beneficiaries who claimed that Ellen had told her carers that she did not want her brother, Stephen, or his wife to get their hands on her money.
The court found inconsistences in Stephen’s evidence, but crucially there was evidence that Ellen lacked capacity to manage her property and affairs.
Talking about the case, Roman Kubiak Head of Contested Wills, Trusts and Estates at Hugh James said: “It was an interesting case. This could have been dead in the water on the capacity point alone but the judge went further, looking at and analysing the other factors and the big factor was that it seemed the deeds were handed over for safekeeping to be passed to solicitors rather than as a gift.”
The judge further said that even if the house had been given to Stephen Keeling as a gift, it had been done so six months prior to her death and the gift would have lapsed.
The judge ordered that the estate should be distributed in accordance with intestacy rules.
Courts require strict evidence in cases involving death bed gifts. Often the only witness is the person claiming to be in receipt of a death bed gift.
They are not very common. Kubiak said: “The courts are increasingly shying away from them and I think in the future they are going to continue to be less and less common”.
There is a threefold test that needs to be met for death bed gifts.
- The gift must be made by the donor in contemplation, although not necessarily in expectation, of the donor’s impending death. Over time the courts have narrowed down the definition of death and it means a matter of days.
- The gift must be contingent on the donor dying and is revocable until that event occurs and ineffective if it doesn’t occur.
- The donor must part with the gift or deliver it in some way to the donee. In this case, where property was concerned the keys and deeds were handed over. The house was unregistered. Now however as houses are registered centrally with Land Registry, the incidences of when a person is going to be able to hand over deeds is by its nature reducing.
