Vallee v Birchwood

A donatio mortis causa requires: contemplation of impending death; a conditional gift revocable before death; and delivery of the property or its essential indicia of title, amounting to a parting with dominion.

Contemplation of death is subjective. The donor need not have objectively reasonable grounds for expecting death, and the absence of an opportunity to make a will is not an additional requirement. For land, delivery of title deeds together with a key may constitute sufficient delivery of dominion, even though the donor remains living in the property. The practical, rather than merely theoretical, ability of the donor to deal with the property is material.

The claimant appealed from a decision of His Honour Judge Harris in the Oxford County Court. The judge had declared that the defendant, administrator of the estate of the claimant’s deceased father, held the deceased’s house on trust for her. The declaration followed the judge’s finding that the deceased had made a valid donatio mortis causa by handing the claimant the title deeds and a key while saying that she should have the house when he died.

The administrator challenged the findings that the gift was made in contemplation of impending death, that dominion had passed, and that the gift fell within the rationale of the doctrine. He also appealed the order requiring him to pay the claimant’s costs.

1. The appeal was dismissed. The judge below had reached the correct conclusion for the correct reasons: the deceased had made a valid donatio mortis causa of the house.
2. The three essential requirements identified in Sen v Headley [1991] Ch 425 are that the gift is made in contemplation, though not necessarily expectation, of impending death; that it is conditional upon death and revocable until then; and that there is delivery of the subject matter or essential indicia of title amounting to a parting with dominion.
3. “Impending death” is assessed by reference to the donor’s subjective contemplation of death in the near future. The court need not determine whether the donor had good grounds for anticipating death, and the actual interval before death does not itself determine the issue. Treating lack of time or opportunity to make a will as the temporal measure would introduce an additional condition not required by modern authority.
4. Dominion means conditional ownership rather than absolute ownership. It requires an overt act of transfer and more than mere intention. Partial dominion is sufficient where the donor suffers a corresponding deprivation of power to deal with the property. In assessing land, the court should consider practical rather than theoretical possibilities.
5. Delivery of title deeds and a key to the house, accompanied by words showing a conditional gift, was sufficient delivery of dominion. The deceased’s continued occupation for four months was not inconsistent with the gift. The appeal against the declaration was therefore dismissed.
6. The appeal against costs was also dismissed. The judge below had been entitled to take into account that the claimant had succeeded, had needed to litigate to vindicate her rights, and that the administrator had undertaken the role for potential financial gain. The reasons were adequate and the discretion had not been exercised outside its proper ambit. The reference to without-prejudice correspondence was rightly excluded.

• High Court (Chancery Division): On appeal from the Oxford County Court, the court dismissed both the appeal against the declaration that the administrator held the property on trust for the claimant and the appeal against the costs order.
• Oxford County Court: His Honour Judge Harris found that a valid donatio mortis causa had been made and ordered the administrator to hold the property on trust for the claimant and to pay her costs.