When I'm gone, all this will be yours...

The Court of Appeal has overturned the High Court decision in the recent ‘donatio mortis causa’, sometimes referred to as a deathbed wish, case of King v Dubrey and others [2014].  Kirsten Edberg, Private Client Solicitor, here explains what this means and how the Court of Appeal reached their decision.

“This case began in March 1998 when an aunt made a Will,” begins Kirsten.  “After a number of small legacies to friends and relatives, the bulk of her estate was left to seven animal charities.  In 2007, by which time the aunt was frail and elderly, her nephew went to live with her.  Around November 2010, the aunt presented her nephew with the title deeds to her house, saying ‘this will be yours when I go’.  The nephew claimed that her use of the words and the way she looked at him made it clear that she knew her health was failing and that her death was approaching. He took the deeds from her and put them in his wardrobe.

“She died in April 2011.  During the six months before her death, the aunt signed three separate documents, purporting to leave her property to her nephew.  However, none of the documents met the requirements for a valid Will.  On her death, the 1998 Will therefore took effect.  The High Court found that the aunt had affected a ‘donatio mortis causa’ whereby her house passed to her nephew on her death.”

The seven charities appealed the High Court decision claiming that the requirements of ‘donatio mortis causa’ were not met.  Kirsten explains, “If requirements are met, this status effectively allows a person, or donor, to transfer property to their chosen beneficiary on death without complying with the legal formalities required to make a valid Will or the formalities for transferring a legal estate in land.”

The three requirements, in summary, are that the gift must be made in contemplation of impending death, the gift must be contingent on the donor’s death and finally there must be a delivery of the asset that is the subject of the gift or the title to it in a way that amounts to parting with ‘dominion’ over it.

“Applying these three conditions of the doctrine, the Court of Appeal found the aunt had not made a valid deathbed gift to her nephew as the first condition had not been satisfied, so the appeal succeeded,” continues Kirsten.  “The ‘gift’ was made four months before she had died.  At that time, although elderly and conscious of her generally failing health, she had no reason to expect to die imminently, and there was no evidence that she had been suffering from a specific illness.  She had both the time and capacity to approach her solicitors and, with their independent legal advice, make a new Will leaving the house to her nephew.”

It appears she did attempt to do this, but this was used to prove that the second condition was also not met.  “Although her attempts to make a new Will were not successful, the very fact that she tried to execute a new Will was inconsistent with the idea she had already gifted her house to her nephew” explains Kirsten.   “The reported words ‘this will be yours when I go’ were more consistent with a statement of testamentary intent rather than a gift conditional on death within a limited time.”

The Court did find that the third condition had been met, as handing the title deeds of the property to her nephew constituted ‘delivering dominion’ over the property to him, however this had no bearing on the outcome of the case.”

Kirsten concludes, “This is a helpful reminder of the principles of the somewhat unusual doctrine of ‘donatio mortis causa’ and the means by which a deathbed gift can take effect.  The Court of Appeal decision makes it clear the strict limits within which the doctrine should operate and highlights that the doctrine should not be relied upon as a substitute for making a valid Will.”

If you have any queries about making, or are looking to dispute, a Will, you can contact Kirsten or the Private Client team on 01329 222075 or visit their section of the website.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.