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Gift in Contemplation of Death

In the recent case of King v The Chiltern Dog Rescue and another, the Courts re-considered the requirements for a valid ‘gift in contemplation of death’ to be made and emphasised the narrow set of circumstances in which this doctrine applies.

This doctrine applies where:-

1)      A person contemplates their impending death for a specific reason, and

2)      That person makes a gift which is only intended to take effect if and when their contemplated death occurs. If that death does not occur as contemplated the gift fails to take effect, and

3)      The person making the gift delivers either physical possession of the gift, the means of accessing the gift or documents showing entitlement to possession of the gift.

In this case an aunt made a Will in 1998 leaving the bulk of her property and large part of her estate to animal charities. In 2007 the aunt’s nephew moved in with her to care for her. The nephew was told by his aunt that on her death he would receive her property in return for the care he provided her with. The aunt also put in writing that her nephew should receive the property and attempted to execute a Will to this effect. Neither pieces of written evidence were sufficient to constitute a valid Will and her 1998 Will therefore remained in force on her death.

The Court held that a gift in anticipation of death had NOT been made because the aunt was not contemplating her death for a specific reason when she purported to make the gift. Further, the aunt continued to attempt to make the gift in writing and through the ineffective Will which was inconsistent with an irrevocable gift having already been made.

Therefore, in this case therefore only Condition 3 was satisfied and the charities received the property. This underlines the narrow nature of this doctrine and the importance of making a valid Will should intentions as to how property is to be inherited change.

If you would like advice on making a Will please contact a member of our Wills, Probate and Private Client Department who will be happy to advise you.

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