Succession – Property – Deathbed gifts – Deceased and wife leaving wills appointing each other as sole executor and beneficiary – Claimant relatives claiming entitlement to property of deceased by deathbed gift (donatio mortis causa) – Whether requirements for such gift established – Whether deceased giving property to claimants in contemplation of impending death – Claim dismissed
H and W were a devoted married couple, who each died at the age of 71 within months of each other in 2019. They had no children. Each left a will dated 28 May 2009 in which each appointed the other as sole executor and sole beneficiary.
After his wife died in January 2019 of cancer, H attended the solicitor who had drafted the wills to make a new will. However, he did not execute the new will before he died of a heart attack in May 2019. As his wife had predeceased him, his gift to her under his 2009 will failed, and his estate, including that which he inherited from his wife, passed under the law of intestacy to his next of kin, the defendants. When H’s inheritance from his late wife was added, his total assets were recorded as more than £2m. The inheritance tax (IHT) return relating to his estate records that his net estate was worth just over £1.1m before IHT.
The claimants, who were other family members, challenged that position. They claimed that in January 2019 the couple made gifts of a substantial part of their sizeable estates, in contemplation of their respective deaths. The first claimant also claimed that H had made such a gift to her in February 2019 of the house which he had jointly owned with his wife, known as Troedyrhiw, in Talley near Llangadog in Carmarthenshire, valued at £350,000.
An issue arose whether, having regard to the law of deathbed gifts (donatio mortis causa), the claimants’ challenge could succeed.
Held: The claim was dismissed.
(1) The evidence indicated that the couple intended, at least from 2 January 2019 onwards, that both sides of the family should benefit substantially from their estates. The claimants were deserving of sympathy as, in the event, H did not live long enough to ensure that his will was changed to bring that about. If the law permitted a way to put things right, the court would not need to strive very hard to do so. On the other hand, such sympathy could not justify the court attempting to fit the facts into strict legal requirements if objectively those requirements were not made out. The principle of such gifts (known as deathbed gifts or donatio mortis causa) was an anomaly which enabled the transfer of property upon death without complying with any of the formalities of section 9 of the Wills Act 1837 or section 52 of the Law of Property Act 1925. There was a need for the strictest scrutiny of the factual evidence, and the courts should not allow the principle to be used as a device in order to validate ineffective wills.
(2) There were three requirements for a valid deathbed gift. The first requirement was that the donor of the gift should be contemplating his impending death. That meant that the donor should be contemplating death in the near future for a specific reason. The donor had to have good reason to anticipate death in the near future from an identified cause, although the anticipated death need not be inevitable.
The second requirement was that the donor had to make an unusual form of gift which would only take effect if his contemplated death occurred. The donor reserved the right to revoke the gift at will. In cases where early death was inevitable, the law relaxed the requirement that the donor should specifically require the property if he survived.
The third requirement was that the donor should deliver “dominion” over the subject matter. That was not easy to understand because the property would not pass until a future date, if ever, and the donor had the right to recover the property whenever he chose. It appeared to mean that the donor delivered physical possession of either the subject matter of the gift or some means of accessing it, such as the key to a box or documents evidencing entitlement to possession of the subject matter: King v The Chiltern Dog Rescue and another [2015] EWCA Civ 581; [2015] PLSCS 175; [2016] Ch 221 considered.
Those requirements had to be applied to each of the three gifts which the claimants relied upon in the present case. The evidence strongly indicated that the intention of the couple was not to make gifts to take effect on the death of one or other of them, but to express wishes which H would incorporate into a new will after the death of his wife. That was what the form itself, on an objective reading, indicated. It also tied in with the background to the 2009 wills and the couple’s realisation that the survivor would have to make a new will to benefit both sides of the family. It was likely that that was how W and her husband both intended matters to proceed after her death.
(3) On a strict analysis of all the evidence, there was no justification for a conclusion that prior to his unexpected heart attack H was contemplating his death for a specific reason. While it was clear from authority that delivery of deeds of unregistered property might constitute delivery of dominion, there was no authority in England and Wales that preregistration deeds or office copy entries in respect of registered property might amount to the same thing. Since the Land Registration Act 2002, office copy entries were not required to be produced on any dealing with the property. It would be odd if the requirements of deathbed gifts altered depending upon whether the property was registered or unregistered. Such a gift of registered land could be made in certain circumstances, where for example a transfer was executed by the donor to the donee to take effect only on the former’s death.
Accordingly, the strict requirements for a valid deathbed gift were not all met in the three claimed gifts. However, failure to meet strict legal requirements did not prevent the defendants from making voluntary gifts to the claimants from H’s estate, including his late wife’s estate, should they feel so inclined.
Richard Fowler (instructed by CCW Law Solicitors Ltd of Carmarthenshire) appeared for the claimants; Alex Troup (instructed by Graham Evans & Partners of Swansea) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read a transcript of Davey and another v Bailey and others
