The strict approach to the deathbed gift
‘Deathbed gifts’ are one of the limited exceptions to the general principle that on death, the property of the deceased should be disposed of according to either a written will, or the rules on intestacy.
The courts have long recognised that the concept of the ‘deathbed gift’ is open to abuse. The case of Kenneth Paul King v The Chiltern Dog Rescue, Redwings Horse Sanctuary illustrates the strict approach that the courts will take in circumstances in which someone seeks to rely on the concept of ‘donatio mortis causa’ – the deathbed gift.
The Facts
Mr King, the claimant in this case, was the nephew of June Fairbrother. Divorced with no children, June had been a police officer, and was an animal lover. In retirement, she helped and supported a number of animal charities. Her family were aware of her intention to leave her property, including a home she owned, to animal charities on her death. This intention was set out in a will drawn up in 1998 which left modest legacies to friends and relatives. Her will left the bulk of the estate to 7 animal charities. The claimant had been bankrupt and had a conviction for acting as a director while disqualified. In 2007, he went to live with June in an agreement which suited both parties. He would have a home and she would have someone to care for her as she became older.
According to the claimant, June had, on a number of occasions explained that she wanted him to have the house on her death and on 19th November 2010, she wrote a note to this effect, on the basis that he would care for her animals after her death. She gave the deeds of the property to the claimant, saying “…this will be yours when I go…”. In February and March 2011, further documents were drawn up to this effect, including a purported ‘will’ which was signed by June but not witnessed, leaving the house to the claimant.
June died in April 2011. Contrary to her wishes, the claimant sent her dogs to a dogs home. None of the documents drawn up by June prior to her death amounted to a valid will, so the 1998 will stood. The claimant sought a declaration that June had made a deathbed gift – a donatio mortis causa leaving the house to him.
Although the judge at first instance ‘had not found it easy’ to accept the Claimant’s evidence, in view of the circumstances and the Claimant’s background, he did make the declaration of the gift. The Court of Appeal overturned the decision.
- The Court of Appeal recognised that the Claimant’s background gave serious cause to question the evidence he gave of the circumstances surrounding the ‘gift’, but was reluctant to overturn the findings of fact made by the judge at first instance;
- In any event, this did not matter, because the requirements for a donatio mortis causa/deathbed gift had not been fulfilled – June had not made the gift in contemplation of her impending death; in addition, the words she had used appeared to be more like a statement of testamentary intent. Her actions in attempting to draw up a will to leave the property to the claimant suggested that she had not intended to make a gift of the property.
- Although the claimant failed to obtain a declaration that he should have the house as a ‘deathbed gift’, he was entitled to receive maintenance under the Inheritance Act 1975 as a person who had been maintained by the deceased immediately prior to her death.
‘In contemplation of death’
The Court of Appeal was clear that for a death bed gift to succeed, the donor (in this case, June) must make the gift in circumstances where he or she is clearly contemplating death in the near future for a specific reason. The court looked carefully at the case law, highlighting that those cases where a deathbed gift succeeded involved donors who were either diagnosed with a specific condition and were aware that they were likely to die from that condition in the near future, or facing a potentially life threatening set of circumstances such as an operation. Interestingly, the Court of Appeal specifically held that the case of Vallee v Birchwood [2013] EWHC 1449 (Ch); [2014] Ch 271 had been wrongly decided on this point. In that case, although the donor anticipated his death within the following 5 months from when the gift was made (and did in fact die in that period), there was no real reason for him to think that he was actually going to die – he was simply elderly.
A gift rather than testamentary intent
The gift in this case also failed because the Court of Appeal did not believe it was genuinely a gift. The language used (as reported by the claimant in his evidence) and the actions of June in seeking to document her wishes suggested that she was trying to draw up a new will to leave the property to the nephew, rather than making a gift. Although the first and second conditions of a donatio mortis causa were not satisfied in this case, ironically, in handing over the title deeds to the claimant, June did fulfil the 3rd condition, namely handing over ‘dominion’ to him.
The case raises an interesting question about maintenance under the Inheritance Act 1975 which we will look at in another blog. On the question of deathbed gifts, the decision of the Court of Appeal indicates the strict approach the courts will take. The concept of donatio mortis causa is something of an anomaly, open to abuse because it removes the protections that the Wills Act and the Law of Property Act offer in relation to the disposal of property. Anyone seeking to rely on a deathbed gift in future will have to have clear evidence supporting all 3 conditions of a donatio mortis causa to succeed.