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How do Ilott and King affect the current law?

Richard McDermott and Adam Carvalho consider the fallout from two significant recent cases and review the law on challenges to wills and 'deathbed gifts'

10 November 2015

For a gift to be a valid ‘deathbed gift’, ?or donatio mortis causa (DMC), it must ?meet the following criteria:

  • It must be made in contemplation of ‘death within the near future, what may be called death for some reason believed to be impending’ (Re Craven’s Estate (No. 1) [1937] Ch 423). The donor might, for example, be suffering from a serious illness or about to undergo an operation from which they may not recover. They must believe that death is impending for a reason and for these purposes the phrase ‘within the near future’ usually means a matter of days; 

  • The gift should be expressed as conditional on the donor’s death. So it would be enough for ?the donor to say, ‘If I don’t survive my operation, ?I want you to have my house.’ However, if the donor has not used conditional wording (e.g. ‘This house is yours, Margaret’ in Sen v Headley [1991] Ch 4...

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