Bedside / Deathbed Wills
Reasons to choose Wilson Browne
The problem of deathbed / bedside Wills, more commonly than you may think, is the lack of evidence of the gift and with often only the deceased and the person who benefits from the “gift” being present at the time.
The 2017 case of Keeling (by his Litigation Friend Christopher Godfrey Clifford) v Keeling & Keeling [2017] EWHC 1189 (Ch) is a case in point of the pitfalls of ‘deathbed wills’.
Ellen Elizabeth Exler died in 2012 without making a Will. Her brothers Stephen and Frank inherited under the intestacy provisions with the main asset of the estate being the deceased’s property which was unregistered land.
Stephen maintained that Ellen Exler had handed to him the Deeds and keys to the property after she had a heart attack saying “I want you to have them “I would rather you had it than anyone else”.
Following her death, Stephen transferred the property into the names of himself and his wife and notified his brother Frank.
Frank commenced a claim and brought evidence from his sister’s professional carers that she had not wanted Stephen to have the property or to “get their hands on my money”. She had reportedly said that they would get the house “over my dead body”.
For a death bed Will to be valid certain conditions must be met:
- The gift must be made in contemplation, though not necessarily in expectation, of impending death
- The gift must be made on condition that it is to be absolute only on the donor’s death and revocable before that
- There must be a handing over of the subject matter of the gift to the intended recipient.
Crucially in this case, Stephen had taken the Deeds to the deceased’s solicitor – indicating that he had been given the Deeds to look after and not on the basis of a gift. The deceased had also talked to her solicitor about making a Will and whilst she had not done so, she had never mentioned an intention to give the house to Stephen.
Stephen’s claim failed and was described by Judge Charles Hollander QC as “hopeless”.
Deathbed Wills remain notoriously difficult to succeed in proving despite the fact that such gifts are made quite often. In the event of a challenging the will, it will not take much to persuade a Court against the gift and there can be no substitute for a validly made Will prepared by a professional (often with a certificate from a medical practitioner as to capacity).