King v Dubrey & Ors

A donatio mortis causa is an exceptional present gift conditional on death. It requires a clear intention to give, contemplation of impending death, and delivery of the subject matter or essential indicia of title with a parting of dominion. The court must scrutinise the evidence closely, but continued occupation of property by the donor is not necessarily inconsistent with the gift. An attempted later will does not necessarily revoke an earlier gift.

For dependency under the Inheritance (Provision for Family and Dependants) Act 1975, the court takes a broad, common-sense view of maintenance. Contributions by the applicant, such as care, do not automatically prevent dependency where the deceased made substantial contributions in money or money’s worth on a settled basis.

June Margaret Fairbrother left the substantial part of her estate to animal charities. Her nephew, Kenneth King, lived with her and claimed that, four to six months before her death, she handed him the title deeds to her unregistered property, saying that it would be his when she died.

He alternatively claimed provision under the Inheritance (Provision for Family and Dependants) Act 1975, alleging that he had cared for June while receiving accommodation, expenses and modest sums of money. The charities contested both claims. The central issues were whether the evidence established a valid donatio mortis causa and, alternatively, whether Mr King was a dependant entitled to reasonable financial provision.

1. Donatio mortis causa. The court accepted Mr King’s evidence about the handing over of the deeds. The failed attempts by June to make a will in his favour provided powerful corroboration.
2. The requirements of a valid gift were satisfied. June’s words, viewed in context, indicated a gift conditional on her death. The gift was made while she was increasingly preoccupied with her impending death, and contemplation of death within several months could amount to contemplation of impending death. The fact that she continued to live at the property did not prevent the gift. Mr King had taken the deeds into his own room, and the circumstances showed a conditional parting with dominion.
3. There was no sufficient evidence that June lacked capacity. Evidence of memory loss or possible dementia did not establish incapacity, particularly in the absence of medical evidence and in light of her consistent written intentions.
4. The later invalid will did not revoke the gift. A donatio mortis causa is revocable during the donor’s lifetime, but the later attempt to perfect the same intended benefit by will was not inconsistent with the earlier conditional gift.
5. Alternative statutory claim. Applying the broad, common-sense approach in Jelley v Iliffe, the court found that June had maintained Mr King in money and money’s worth on a settled basis. His care and other contributions did not prevent him from being partly dependent on her. He therefore qualified under section 1(1)(e) of the Inheritance (Provision for Family and Dependants) Act 1975.
6. The disposition did not make reasonable financial provision for him. Having regard to the statutory factors, including the four-year duration of maintenance, the estate’s value and Mr King’s lack of income or accommodation, the court would have awarded £75,000 under the Act.

The court found for Mr King on the donatio mortis causa claim.