Background
A donatio mortis causa is a gift made by a person before he dies, in anticipation of his death.
The recent Court of Appeal decision in the case of King v The Chilterns Dog Rescue [2015] has provided welcome guidance on the doctrine of donatio mortis causa, but its scope has been restricted significantly.
The Appellants in King were residuary beneficiaries under the will of the deceased, June Fairbrother. Mrs Fairbrother lived at an unregistered property in Harpenden with her nephew, Kenneth King, for a period before her death in 2011. Mr King’s primary claim was that Mrs Fairbrother made a donatio mortis causa (‘DMC’) of the property to him around 5 months before her death by handing him ‘the deeds’ to the Property at a time when she knew that her health was failing, saying ‘this will be yours when I go’. There were no witnesses to this and the only evidence in support of that conversation and act was Mr King himself. Charles Hollander QC, sitting as a deputy High Court Judge in the Chancery Division concluded that this amounted to a valid DMC, following Vallée v Birchwood [2013].
Rules as clarified
The Court of Appeal, however, held that the High Court decision had interpreted the law relating to DMC too widely. It confirmed the three requirements for a valid donatio mortis causa:
- the giver must be contemplating their impending death;
- the gift will only take effect on death and can be revoked at any point before death;
- “dominion” (control) over the subject matter of the gift must be given to the recipient.
For the first requirement to be met, a person must be contemplating their death in the near future for a specific reason, perhaps because they are seriously ill in hospital or about to undergo a major operation, or suffering from a fatal illness. It is not sufficient for a person to merely be reaching the end of their natural life span, as the aunt was. The Court also found that the aunt’s words “this will be yours when I go” were a statement of testamentary intent, not a gift which was conditional upon her death within a limited period of time. This was further evidenced by the actions of the aunt and her nephew following that conversation. Furthermore, subsequent preparation of (ineffective) Wills was inconsistent with the suggestion that the property had already been gifted. Although delivering the deeds to her nephew satisfied the third requirement, the Court of Appeal ruled that the first two requirements had not been met and so the gift failed.
Effect going forward
This decision shows a restrictive approach towards findings of DMC. The Court of Appeal expressed a clear concern that allowing a finding of DMC in such cases as this would bypass the safeguards put in place by statute for the creation of valid Wills, thus potentially circumventing the wishes that the donor had set out in their Will. The Court of Appeal further commented that the doctrine itself "serves little useful purpose today", which points towards a likely sceptical approach of the courts to any claims of DMC in the future.
See our Wills services page for more information or click here to email Lucinda Brown.
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