Personal Law
September 1, 2020

Dying without a Will and 'death bed' gifts

Where a person dies without a valid Will they are deemed to have died intestate and the default rules of intestacy apply to the administration of their estate.

The government website has a helpful intestacy calculator which explains what can happen if someone dies without a Will.

It was recently reported that Peter Ivory, while acting in the administration of his late brother, Michael Ivory’s estate, who died intestate, converted approximately £150,000 of the £414,000 estate and gave it away to homeless people, charities and purportedly also helped a friend go on holiday and donated money to a school. Under the rules of intestacy, the late Michael Ivory’s estate should have been divided between his surviving brothers Alan, John and his nephew Michael.

Peter Ivory defended his actions in giving away the estate arguing that his brother made a death bed wish that he:

“Care for his beloved dog, Lady, to ensure Pat’s [his late wife’s] treasured collection of Osmond memorabilia went to a good home, and to make sure Alan did not receive a penny of his fortune.”

‘Death bed’ gifts, known as ‘donatio mortis causa’ is a way for a person who expects to die imminently to make a gift. When the donor dies, the gift passes to the donee, i.e. the person to whom the gift is intended. ‘Death bed’ gifts can be effective regardless of whether or not a person has a Will.

Peter maintained that the principle of ‘donatio mortis causa’ applied and his actions were in the fulfilment of his late brother’s wishes. However, Peter was not able to evidence that he had complied with his late brother’s wishes other than his statement that he had given the money away.

The case has currently been adjourned and Peter has been ordered to give a full account of the money he has distributed and could face a prison sentence.

This case has brought up a number of issues which arguably could have been avoided had the late Michael Ivory made a Will.

  • Firstly, it is important to have an up to date Will that clearly expresses your wishes.
  • Secondly, it is important that you carefully choose your Executors, they are the ones who will administer your estate in accordance with your Will.
  • Thirdly, be wary of relying on ‘death bed’ gifts which may be subject to challenge.

Our Private Client team have extensive experience in advising clients on Wills, Trusts and Probate matters as well as other lifetime planning matters.

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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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