Property – Gift – Donatio mortis causa – Claimant being adopted daughter of deceased – Deceased dying without making will – Deceased handing over keys and title deeds for house to claimant months prior to death and stating intention to gift house to her – Defendant administrator obtaining letters of administration for benefit of deceased’s brother – Judge making declaration that claimant owned house as “donatio mortis causa” – Defendant appealing – Whether judge erring in law – Whether contemplation of death within five months of death constituting “impending death” – Whether house being donatio mortis causa — Judge properly finding that house gifted to claimant by deceased in contemplation of impending death – Appeal dismissed
The claimant was the adopted daughter of the deceased and visited him shortly before his death. She told him that she would visit again at Christmas, to which he replied that he did not expect to live much longer and that he wanted her to have his house when he died. He gave the claimant the title deeds and a key to the house. The deceased died almost three months later leaving no will.
The claimant subsequently claimed the property on the basis that it had been given to her as a “donatio mortis causa” (a gift which remained conditional until the donor died). The treasury solicitor rejected her claim and advertised for potential claimants. The defendant, a genealogist, discovered that the deceased had a surviving brother from whom he obtained a power of attorney and was granted letters of administration for the benefit of the brother. The treasury solicitor admitted the brother’s claim, disclaiming any further interest in the deceased’s estate.
The claimant obtained a ruling from the court that there had been a donatio mortis causa in respect of the deceased’s estate and a declaration that the defendant held the property on trust for the benefit of the claimant. The defendant appealed.
Held: The appeal was dismissed.
(1) A valid donatio mortis causa was subject to the essential conditions: (i) that the gift had to be made in contemplation, although not necessarily in expectation, of impending death; (ii) the gift had to be made upon the condition that it was to be absolute and perfected only on the donor’s death, being revocable until that event occurs and ineffective if it did not; and (iii) there had to be a delivery of the subject matter of the gift, or the essential indicia of title thereto, which amounted to a parting with dominion and not mere physical possession over the subject matter of the gift: Wasserberg, Re (1915) 1 Ch 195 and Sen v Headley [1991] Ch 425 applied; Ward v Turner (1752) 2 Ves Sen 431, Duffield v Elwes (1827) 1 Bli NS 497 and Birch v Treasury Solicitor [1951] Ch 298 considered.
(2) In the present case, the judge had been entitled to hold that the gift was made in contemplation of the deceased’s impending death. A person who anticipated the possibility of his death within five months and accordingly wished to make provision for the transmission of his property, would generally be considered to be contemplating his impending death. It was clear that the deceased had made the gift because he feared that he was unlikely to live until the claimant’s next visit at Christmas. The question was not whether the donor had good grounds to anticipate his imminent demise or whether his demise proved to be as speedy as he might have feared but whether the motive for the gift was that he subjectively contemplated the possibility of death in the near future. It appeared from what the deceased had reportedly said that he had contemplated the possibility that he would die before Christmas, which in that context was the near future. The delivery by the deceased of the title deeds and a key to the house to the claimant in contemplation of his impending death, accompanied by what he had said, was a sufficient delivery of dominion over the house to constitute a valid donatio mortis causa.
Sinclair Cramsie (instructed by Patrick Smith & Co, of Wantage) appeared for the claimant; William Moffett (instructed by Rollingsons) appeared for the defendant.
Eileen O’Grady, barrister
