Donatio Mortis Causa ruling overturned by Court of Appeal

The ruling by the High Court in the case of King v Dubrey has been overturned by the Court of Appeal.

The Court of Appeal decided that the deceased (Mrs Fairbrother) had not made a deathbed gift of her house to her nephew (Mr King) some four months before her death, on the basis that, although elderly, she had no reason to expect to die imminently and had both the time and capacity to make a new will leaving the house to her nephew if she had really wished to do so. In reaching its decision, the Court also found that the DMC case of Vallee v Birchwood, where the High Court held that a deathbed gift had been made four months prior to death, had been wrongly decided.

The facts of the case are that Mrs Fairbrother had executed a will leaving modest legacies to various members of her family and, as an animal lover, she also named seven animal charities as the residuary beneficiaries.

In 2007, her nephew Kenneth King, went to live with her in her house in Harpenden, Hertfordshire; the arrangement was that he would care for her in return for free board and lodging.

King later claimed that, during the time they lived together, Mrs Fairbrother had promised him the house would be his after her death. She also wrote a note stating that in the event of her death she left her house and her property to King ‘in the hope that he will care for my animals until their death’. This note was witnessed and signed by one of her friends. Two months before her death, she signed a will (without a witness) that King presented to her and which he had downloaded from the internet.

Upon her death, the charitable beneficiaries of Mrs Fairbrother’s original will expected to receive their legacies because none of the other documents she signed prior to her death complied with the Wills Act.

King applied for a court declaration that the house had been gifted to him by his aunt in anticipation of her death — a donatio mortis causa or DMC. The charities resisted this application. However, in July 2014, Charles Hollander sitting as a deputy High Court judge found in favour of King. Even though he regarded King’s evidence of his conversations with Mrs Fairbrother with ‘circumspection’ he was persuaded by the physical evidence — the note, the invalid will, and the handing over of the deeds — that the gift had been genuine: Mrs Fairbrother had had capacity to make it and had not revoked it. Accordingly it took effect on her death.

The aggrieved charities appealed on the grounds that the judge should not have accepted King’s account of Mrs Fairbrother’s actions, or if he did then her actions did not amount to a DMC. They also submitted that she did not have capacity to make the DMC; or if she did, then she had revoked it by her subsequent (though ineffective) will-making.

Mr Justice Jackson said when giving his judgment, the doctrine ‘paves the way for all of the abuses which [statute law is] intended to prevent[…] I must confess to some mystification as to why the common law has adopted the doctrine of DMC at all[…] it serves little useful purpose today, save possibly as a means of validating death bed gifts [and] even then considerable caution is required’.

In the event, Jackson and his colleagues decided that Mrs Fairbrother was not in fact contemplating her impending death when she had the most crucial conversation with King. Even though she was 81 and frail, she was not suffering from any specific illness. Accordingly one of the conditions of the validity of a DMC was not met. If she had wanted to alter the disposition of property on her death, said Jackson, she could have gone to her solicitors and made a new will.

‘If the DMC claim is upheld, the effect will be that June’s will is largely superseded and the bulk of her estate will pass to the claimant, who is not even named as a beneficiary in the will’, commented Jackson. ‘This would bypass all of the safeguards provided by the Wills Act and the Law of Property Act.’

He said, therefore that the charities’ appeal must succeed on that ground alone — even though this contravened a recent decision in another DMC case, Vallee v Birchwood. He thus declared that Vallee was wrongly decided.

Moreover, Jackson ruled that Mrs Fairbrother could not have made a DMC gift of the house, because she later attempted to make a will that disposed of it.

The appeal court thus reversed Hollander’s decision in the High Court and nullified the alleged DMC gift. The charities will now receive much of the legacies they had expected. However, King also made a claim for reasonable financial provision under the 1975 Inheritance (Provision For Family And Dependants) Act, which was allowed.

What are your thoughts on deathbed gifts? Should the doctrine of DMC still exist at common law in today’s legal world?

Cases cited:

King v The Chiltern Dog Rescue and others [2015] EWCA Civ 581

King v Dubrey and others [2014] EWHC 2083 (Ch)

Vallee v Birchwood [2013] EWHC 1449 (Ch)

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