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  • Ian at New Approach

High Court Case Highlights importance of updating your will.

In the recent case of Davey v Bailey, HHJ Jarman QC. looked at the issue of death bed gifts and highlighted that correctly applying the law does not necessarily mean the outcome will be fair, stressing that the court will not use an alleged deathbed gift as a device to validate an otherwise ineffective will.

The facts

In 2009 Alan and Margaret Bailey each made a will leaving their estate to the other. Margaret died in January 2019. Alan subsequently made an appointment to make a new will, but did not execute it. He died in May 2019 and his estate, including everything that he had inherited from Margaret, passed to his brothers and sisters under the laws of intestacy. Margaret’s family received nothing.

HHJ Harman inferred that Alan and Margaret had intended that both sides of the family should benefit from their estates. HHJ Jarman QC observed: “The claimants are deserving of sympathy as in the event, Mr Bailey did not live long enough to ensure that his will was changed to bring this about. If the law permits a way to “put things right”…then in my judgment the court would not need to strive very hard to do so. On the other hand, such sympathy cannot justify the court attempting to fit the facts into strict legal requirements if objectively those requirements are not made out.”

The law

Margaret’s family attempted to establish that Margaret and Alan had made gifts to them prior to their death and that these gifts were valid donationes mortis causa. (death bed gifts). Margaret had filled in a checklist provided by Macmillan Cancer Support in which she stated that Alan’s brother should receive a property and her brother and sister “the equivalent” and Alan gave one of the claimants a file of papers concerning a house, saying that Margaret had wanted her to have it and that was what he wanted too.

HHJ Jarman QC set out the three requirements of a valid donationes mortis causa.

1. The donor contemplates his impending death;

2. The donor makes a gift which will only take effect if and when his contemplated death occurs. Until then D has the right to revoke the gift;

3. The donor delivers dominion over the subject matter of the gift to the recipient.

Applying the above conditions HHJ Jarman ruled that neither of the gifts relied upon met the requirements. The Macmillan form had been completed by Margaret in contemplation of her impending death, but was merely an expression of her wishes as to what could be incorporated into any new will Alan might make. Furthermore, there was no gift of specific property over which dominion could be delivered.

The second gift also failed as Alan was in good health when he gave the file of papers to the claimant. His death three months later following a heart attack was unexpected and therefore the gift of the papers could not be said to have been made in contemplation of his impending death.


HHJ Jarman QC concluded that the court was restricted to considering whether the strict requirements for a valid deathbed gift had been met and accordingly Margaret’s family were entitled to nothing from the estate. He added that the defendants were not prevented from making voluntary gifts to them from the estate “should they feel so inclined,” quite starkly highlighting that in the absence of a valid will, the financial security of your loved ones can be reliant on the generosity or lack of generosity of distant relatives.

A copy of the judgment of Davey v Bailey [2021] EWHC 445 (Ch) can be found here

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