Analysis
June Margaret Fairbrother (deceased) lived at 12 Kingcroft Road, Harpenden (property) with a number of cats and dogs, of which she was very fond, as she had no children. It was common knowledge within her family that she intended to leave her estate to animal charities which she supported. By a will dated 20 March 1998 (last will) the deceased left her residuary estate to seven such charities (charities). The claimant, who was a nephew, came to live with the deceased, when she was 78 years old, in the summer of 2007. The arrangement was that he would care for his aunt in return for a home to live in and subsistence. According to the claimant, six months before her death, the deceased presented him with the title deeds to the property (which was unregistered land) and said to him that ‘this will be yours when I go’. Her tone of voice and appearance indicated to him that she knew that her health was failing and that death was approaching. He took the title deeds and put them in his wardrobe. Both before and after this occasion the deceased wrote notes, and a form of will (signed though not witnessed), in which she purported to leave the property to the claimant in the hope that he would care for her animals until their deaths. The deceased died on 10 April 2011 and the dogs were sent to a dogs’ home. As the unwitnessed ‘will’ was formally invalid, the terms of the deceased’s last will took effect. The claimant, however, brought proceedings claiming that the deceased had made a donatio mortis causa of the property in his favour; alternatively that he was entitled to reasonable financial provision out of her estate under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act). Mr Hollander QC, in a reserved judgment handed down on 1 July 2015, had not found it an easy question whether to accept the claimant’s evidence but considered that the documents which the deceased had signed during the last months of her life constituted corroborative evidence and, despite considerable circumspection, decided that the deceased had made a valid donatio mortis causa. In reviewing the authorities, the judge followed Vallee v Birchwood. Thus, even though the words spoken by the deceased and act of handing over the title deeds occurred four to six months before her death, he concluded that this constituted a donatio mortis causa and, as he found that she had the necessary capacity to make and did not subsequently revoke the gift, it took effect on her death. Alternatively, the judge concluded that the claimant was a dependant and had a good claim for reasonable financial provision under the 1975 Act which he quantified in the sum of £75,000. The charities appealed.
Held (allowing the appeal in part):
Donationes mortis causae were an anomaly for two reasons. Firstly, they were immune to the Statutes of Fraud 1677 and the Wills Act 1837. Secondly, they were an exception to the rule that there was no equity to perfect an imperfect gift. Consequently, the evidence in support had to be of the clearest and most unequivocal character, and needed to be examined with the strictest scrutiny. The evidence would be rejected if in truth what was alleged as a donatio mortis causa was an attempt to make a nuncupative will or otherwise a will not complying with the formalities required by the Wills Act 1837. Furthermore, the doctrine should not be extended but confined to its proper bounds. These were, firstly, that the deceased should be contemplating impending death. In this respect, Vallee v Birchwood [2013] WTLR 1095 was wrongly decided. Secondly, the gift was conditional on death and revocable until death. Thirdly, there should be delivery of dominion over the subject matter. This included the means of accessing the subject matter or documents evidencing entitlement to possession of the subject matter. On the facts of this case, the deceased could not be said to have been 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 undertake a dangerous journey. The alleged gift was made four to six months before her death at a time when she was still fit enough to collect the title deeds from the bank. If she 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. Moreover, the words which the deceased uttered ‘this will be yours when I go’ were more consistent with a statement of testamentary intent rather than of donative intent conditional on death occurring within a limited period of time. The ineffective documents which the deceased signed afterwards indicated that she was trying to dispose of her assets by means of a will and, as such, were inconsistent with the proposition that she had already disposed of them by means of a donatio mortis causa. It followed, therefore, that the charities’ appeal succeeded.
As regards the claimant’s claim for reasonable financial provision under the 1975 Act there was no reason to disturb the judge’s findings. No-one had suggested that he had ignored any relevant factor or took into account any irrelevant factor. The court would not intervene unless the judge made some error of law or had arrived at a figure outside the permissible bracket. Accordingly, both the appeal and cross appeal would be dismissed.
JUDGMENT JACKSON LJ: [1] This judgment is in eight parts, namely: Part 1: introductionPara [2] to [7]Part 2: the factsPara [8] to [20]Part 3: the present proceedingsPara [21] to [27]Part 4: the appeal to the Court of AppealPara [28] to [33]Part 5: the law on donatio mortis causaPara [34] to [61]Part 6: has a donatio …Continue reading "King v The Chiltern Dog Rescue & anr [2015] EWCA Civ 581"