King v The Chiltern Dog Rescue and another

Title to land – Donatio mortis causa – Deacesed leaving her estate to appellant animal charities in her will – Respondent nephew claiming entitlement to freehold property of deceased by donatio mortis causa – Whether requirements for such gift established – Whether deceased giving property to respondent in contemplation of impending death – Appeal allowed The deceased owned a freehold property in Harpenden where she lived after retiring from work as a police officer. In 2007 when the deceased was becoming increasingly frail, her nephew the respondent, went to live with her, under an arrangement where he cared for the deceased as necessary in return for accommodation and subsistence. The deceased was single and childless but had a number of cats and dogs and was interested in animal welfare. When she died in April 2011, she left a will dating from 1998 which left her estate, save for some modest legacies to friends and relatives, to various animal charities including the appellants. The respondent claimed that the appellants were not entitled to the property since the deceased had transferred it to him by donatio mortis causa (DMC) a few months before her death. He claimed that the deceased had told him on a number of occasions that the house would go to him after her death. On one of those occasions in November 2010, when the deceased was 81 years old and her health was deteriorating, she had written out and signed a short note stating that, in the event of her death, she left her house and her property to the respondent in the hope that he would care for her animals. At about that time, she had given the deeds to the property to the respondent. She had written another document to similar effect in February 2011. In March 2011, the respondent had prepared a “will” for the deceased, again in similar terms, using a form of words which he had downloaded from the internet. However, the deceased’s signature on that document was not properly witnessed. Since none of the documents signed by the deceased in the six-month period before her death complied with section 9 of the Wills Act 1837, the 1998 will took effect. The respondent did not continue to look after the deceased’s animals but instead sent them to a dogs’ home. In the court below, the judge granted a declaration that the deceased had made a valid DMC and the respondent was the legal and beneficial owner of the property. He further held that, if he was wrong on that issue, the respondent as a dependent of the deceased had a good claim for reasonable financial provision of £75,000 under the Inheritance (Provision for Family and Dependants) Act 1975. The appellants appealed. Held: The appeal was allowed. (1) There were three requirements for a valid donatio mortis causa. First, the gift had to be made in contemplation of the donor’s impending death. Second, the gift was only to take effect if and when the donor’s contemplated death occurred; until then, the donor had the right to revoke the gift. Third, the donor had to deliver dominion over the subject matter of the gift to the recipient: Jones v Selby (1710) Prec Ch 300, Cosnahan v Grice (1862) 15 Moo PCC 215, Wilkes v Allington [1931] 2 Ch 104, Sen v Headley [1991] Ch 425; [1991] EGCS 23 and Vallee v Birchwood [2013] EWHC 1449 (Ch); [2014] Ch 271; [2014] PLSCS 197 considered. The doctrine of DMC was an anomaly in the context of English law, enabling the donor to transfer property on his 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 and thus paving the way for all of the abuses which those statutes were intended to prevent. The doctrine served little purpose in the modern day and considerable caution was required in its application. It was important to keep the doctrine of DMC within its proper bounds and resist the temptation to extend it to an ever wider range of situations. The doctrine applied only if the three requirements were met and, because the doctrine was open to abuse, courts should require strict proof of compliance with those requirements and not allow DMC to be used as a device in order to validate ineffective wills. The first requirement, that the donor should be contemplating impending death, meant that the donor had to contemplate death in the near future for a specific reason. The availability of DMC was not limited to situations where the donor was on his deathbed, but the donor had to have good reason to anticipate death in the near future from an identified cause. Vallee was wrongly decided since that requirement was not met on the facts of that case. The anticipated death did not have to be inevitable and the illness or event which the donor faced could be one which he might survive, although it was an essential feature of DMC that the gift lapsed if the donor recovered or survived. The second requirement involved the donor making an unusual form of gift in which the gift would only take effect if the contemplated death occurred and the donor had the right to revoke the gift at will. The gift would also lapse automatically if the donor did not die soon enough. The court should treat proper compliance with the second requirement as an essential element of DMC. The third requirement, for the donor to deliver “dominion” over the subject matter, was not easy to understand since 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. Quite apart from doubts as to whether the judge had subjected the respondent’s evidence to the requisite degree of scrutiny, the requirements of DMC were not made out on the facts that he had found. At the time of the crucial conversation with the respondent in late 2010, most of the deceased’s life span was obviously behind her but there was no evidence that she was suffering from any specific illness. She was not suffering from a fatal illness, about to undergo a dangerous operation or undertake a dangerous journey, and it could not be said that she was contemplating her impending death in the relevant sense. If she was dissatisfied with her existing will and suddenly wished to leave everything to the respondent, the obvious thing for her to do was to go to her solicitors and make a new will. She was an intelligent individual and there was no reason why she should not have taken that course. Had she done so, her solicitors would have talked to her in the absence of the respondent and ensured that she understood the new will which she was making and intended the consequences. In those circumstances, the first requirement of the DMC doctrine was not satisfied and the appellants’ were entitled to succeed in their appeal for that reason alone. Moreover, the second requirement was not satisfied because the words and actions of the deceased were more consistent with a statement of testamentary intent than with a gift which was conditional on her death within a limited period of time. The ineffective documents which she had signed indicated that she was trying to dispose of her assets by means of a will. Those actions were inconsistent with the proposition that she had already disposed of her assets by means of a DMC. In late 2010, the deceased had the capacity to make either a fresh will or a DM but she had not, in fact, taken either of those steps. (2) There were no grounds for interfering with the judge’s decision on the claim for reasonable financial provision under the 1975 Act. The judge had taken into account all relevant factors and the evaluation of those factors was a matter for the first instance court, with which the appeal court would not interfere in the absence of any error of law and where the figure arrived at by the judge was within the permissible bracket. Penelope Reed QC and Mark Mullen (instructed by Wilsons Solicitors LLP) appeared for the appellants; Edward Rowntree (instructed by Berry & Lamberts LLP, of Tunbridge Wells) appeared for the respondent. Sally Dobson, barrister Click here to read transcript: King v Chiltern Dog Rescue