A Place for Death Bed Gifts (Donatio Mortis Causa) in Modern Times?
The doctrine of donatio mortis causa (which in Latin translates to ‘gift by reason of death’) (“DMC”) dates back to the Roman times, and given the statutory provisions of s9 of the Wills Act 1837 and s52 of the Law of Property Act 1925 (governing formalities of a Will and conveyances by deed), is there room for these death bed gifts in the 21st century?
These cases are few and far between and until recently, the court had not had to grapple with them for nearly 25 years, and then like buses two came along.
The first was Vallee v Birchwood (2013) which was then followed by King v Chiltern Dog Rescue and Redwings Horse Sanctuary (2015) in the Court of Appeal more recently.
Lord Justice Jackson took the opportunity in King v Chiltern Dog Rescue and Redwings Horse Sanctuary (2015) to clarify the law on this area.
Turning to the fact of the case first; Ms June Fairbrother, was a retired police officer and a great lover of animals, so had made a Will on 1998 leaving her estate to 5 animal charities. In 2007, her nephew, Mr Kenneth King, came to live with her. In 2010 it was alleged that Ms Fairbrother made a gift of her house (worth £350,000) to Mr King, by delivering to him the title deeds to her house. She then died in April 2011, some 4-6 months after the purported gift.
This was originally held to be a valid death bed gift, but was overturned by the Court of Appeal.
For a DMC to be valid, there are 3 key components:
- The donor must be contemplating their impending death
- The gift is condition upon the donor’s death
- The donor parts with dominion over the subject matter of the gift to the donee
The Court of Appeal held that the Claimant had failed on the first hurdle. Ms Fairbrother was not suffering a fatal illness and there was no other reason why death was on her mind. There must be a specific reason she was thinking about her death in the near future; just being old and nearing your nature life is not enough. She clearly had the opportunity to make a new Will gifting the property to her nephew if she so wished.
Lord Justice Jackson was keen to emphasise that strict compliance to the rules should be enforced by the courts given the huge potential for abuse, “Because the doctrine is open to abuse courts should require strict proof of compliance with those requirements. The courts should not permit any further expansion of the doctrine.”
This case overturned the decision of Vallee v Birchwood (2013) where the donor had gifted his house to his daughter in August 2003 whilst she was visiting from France on the basis he did not think that he would live to see her again at Christmas. He did indeed die just before Christmas, but in August 2003 he had no specific reason for his premonition.
Incidentally Mr King was still able to get something from his aunt’s estate under the Inheritance (Provision for Family and Dependents) Act 1965 (some £75,000) so all was not lost for him.
This shows yet again that public policy dictates that courts will intervene with a testator’s free will where they consider that they are vulnerable or in vulnerable positions open to abuse by those close to them.