On 9 June 2015, the Court of Appeal overturned the High Court judgment in the case of King v Dubrey & Others [2014] (for the case report of the first instance decision, prepared by Charles Russell Speechlys, please click here). This case involved a donatio mortis causa ("DMC"), which is a gift made during the lifetime of the donor in the contemplation of his or her impending death.
Background
This case involved the estate of Ms June Fairbrother ("the Deceased"). It was widely known by the Deceased's family and friends that she loved animals and planned to leave her property in Hertforshire, worth approximately £350,000, to a number of animal charities. The Deceased's will dated 20 March 1998 was drafted in those terms, providing for legacies of £19,000 to friends and family and leaving her residuary estate to a selection of animal charities.
Mr King, the Deceased's nephew brought a claim before the High Court, claiming that the Deceased had made a DMC of her property to him between 4 and 6 months before her death by handing him 'the deeds' to the property at a time when she knew her health was failing, saying "this will be yours when I go". There were no witnesses to this conversation and therefore the only evidence in support of this was the testimony of Mr King himself.
The High Court held that there had been a DMC by the Deceased to Mr King. The court considered that the words used by the Deceased were sufficient to suggest a conditional gift on her death; the significant passage of time and absence of serious illness did not prevent the Deceased's contemplation of her death; and that the Deceased handing the deeds for the property to Mr King was sufficient for her to part with possession, despite the deeds remaining at the property owned by her thereafter.
In deciding in favour of Mr King, this in effect removed the most valuable asset from the Deceased's residuary estate which was gifted to the animal welfare charities nominated as residuary beneficiaries in her 1998 Will.
Decision Appealed by Charity Beneficiaries
Redwings Horse Sanctuary and Chilterns Dog Rescue Society, two of the seven animal charities set to benefit under the Deceased's 1998 Will, elected to appeal the decision of the High Court. The appeal gave the Court of Appeal the opportunity to re-examine the previous authorities in this area and to clarify the scope of the doctrine of DMCs in modern law. The principal issue before the court was whether the Deceased's words and conduct a few months before her death gave rise to a DMC.
The Court of Appeal by unanimous decision found in favour of the charities and overturned the High Court judgment on DMCs. In his judgment, Lord Justice Jackson set out and clarified the three requirements to constitute a valid DMC, which are as follows:
- The donor contemplates his or her impending death
- The donor makes a gift which will only take effect if and when his or her contemplated death occurs (until then the donor has the right to revoke the gift), and
- The donor delivers dominion over the subject matter of the gift to the recipient (for example handing over the deeds to the property).
The Judge noted that, if the DMC claim were upheld, the Deceased's Will would be largely superseded and the majority of her estate would pass to Mr King who was not even named as a beneficiary in the Will. In his Judgment Lord Justice Jackson explained why the requirements to constitute a valid DMC were not satisfied in this case:
"It cannot be said that June (Ms Fairbrother) was contemplating her impending death at the relevant time. She was not suffering from a fatal illness. Nor was she about to undergo a dangerous operation or to undertake a dangerous journey. If June was dissatisfied with her existing Will and suddenly wished to leave everything to the claimant, the obvious thing for her to do was to go to her solicitors and make a new Will... If June had taken that course, the solicitors... would have ensured that June understood the new Will she was making and the intended consequences. One of those consequences was that the animal charities, which June had supported for many years, would inherit nothing on her death."
Comment
The High Court decision raised concerns for charity beneficiaries in general, who were concerned that supporters and members of the public who recorded their wishes in validly executed Wills could have their wishes overruled by unsubstantiated claims that a DMC had taken place. As such the Court of Appeal decision highlights the validity of a properly executed Will as something which cannot be easily overridden.
The Court of Appeal has set down a clear message to potential claimants attempting to circumvent the Wills Act 1837 and has provided a much needed clarification of the requirements that need to be satisfied in order to constitute a valid DMC.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
