What is DONATIO MORTIS CAUSA?

In recent news, a man legally changed his Will by text message just hours before his death and his family, who would have inherited under the terms of his original Will, contested this. The High Court has ruled the SMS message expressing his dying wishes for his estate was in fact legally binding. This was possible due to a concept in law known as donation mortis causa which translates to ‘deathbed gifts’.

Whilst the case may raise questions about whether texts, emails or voicemails could amount to a valid Will, it is important to note that there are several strict criteria that must be met in order for a death bed gift to be deemed as legally binding.

These conditions stipulate that to be valid, a death bed gift must be made by a donor who was genuinely in contemplation of their death and the gift would be conditional upon their death (and so if the donor recovered and lives, the gift would fail). Also, the donor must ‘deliver or part with’ the gift. This usually means they must part with something that controls the gift, for example keys where the gift is a car or a property.

Due to the need to satisfy these conditions, there is a higher possibility that a death bed gift may be contested.

For all other Wills - A Will must be in writing and comply with strict criteria to be valid. These include the requirement for the Will to be signed by the person intending to create a will, in the presence of two witnesses. The person making the Will has to have mental capacity. This means that they are mentally present and aware of their estate and the effect of making or updating their Will.

Making a Will with a solicitor avoids any uncertainty and ensures that your wishes are legally binding. October is free wills month, where you can save yourself the worry of what happens to your estate by getting prepared and having your last wishes written up for free. For more information, please visit https://freewillsmonth.org.uk/

This is a highly specific area of law and not something to undertake without legal advice.