An important probate case this summer, Keeling v Keeling, demonstrated the unwillingness of the courts to believe in so-called “deathbed gifts” without the credibility provided by the presence of a bona fide Will or, failing that perhaps, reliable and impartial witnesses.

The case concerned the alleged deathbed gift of a 91-year-old woman who, according to her 86-year-old widower brother, gifted him her £900,000 house in Westhampnett near Chichester during her final days.

In throwing out the widower’s claim, Judge Charles Hollander QC, reprimanded him for what he said amounted to a “shameless sense of entitlement” which had led him to “ride roughshod” over the interests and rights of other family members, including a third sibling who is 87-years-old and suffers from dementia and physical disability.

The case was both tragic and acrimonious. Prior to the woman’s death, her widower brother “insisted” that she be moved into her care home. This was despite her clear desire to remain in her own home with her dogs.

Sadly, the woman died only four days after moving from her home; soon afterwards her brother took the liberty of registering the house in his name then renting it out and pocketing the income for himself. Furthermore, had the widower won the probate law case, his brother, would have been left with around only £3,000 to meet his significant special needs.

Describing the widower’s attitude towards the case as “blinkered”, the judge’s ruling cleared the way for the estate to be divided in three, with the two brothers each receiving an equal third of the estate and the remaining third split between the two children of another, deceased, sibling.

Speaking about the man’s unilateral decision to move his sister, Ellen, into a care home on 8 November 2012, the judge said he had “created considerable acrimony because Ellen did not want to leave her home, or her dogs.”

He added, “Most importantly, and this is the most serious criticism, his misplaced sense of entitlement to Hadley House meant that he approached the issues in this case with a thoroughly blinkered attitude which involved him looking out for his own interests irrespective of the position or rights of others within his family.”

What Keeling v Keeling teaches us

The case highlights the dangers of family members unilaterally “putting into effect … controversial views in relation to … care” as this can “upset many others seeking to do their best”; thus, the importance of putting a Lasting Power of Attorney (LPA) in place, (for both financial and welfare decisions) while still physically and mentally capable, is emphasised. This should hopefully avoid the possibility of any doubt or exploitation arising out of any later incapacity.

Crucially, it also underlines the need to make a Will and to make it clear that any so-called “deathbed gifts” are made in the presence of suitable and impartial witnesses.

And, it should reassure beneficiaries and testators alike that courts will take a dim view of “self-interest” and “inconsistencies” in relation to Wills and probate evidence. Courts will hold those who act dishonestly and self-interestedly to account; Mr Keeling will have to ensure that he shares all the rental income he has made on the house with the other beneficiaries.

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