King v The Chiltern Dog Rescue & Anor

A donatio mortis causa is an exceptional means of transferring property on death. It must be kept within strict bounds because it bypasses the formal safeguards imposed by Wills Act 1837 and Law of Property Act 1925.

A valid gift requires the donor to contemplate death in the near future from an identified cause, to make a gift conditional on that death, and to deliver dominion over its subject matter. General awareness of declining health or old age is insufficient. Courts must require clear and unequivocal evidence and must not allow the doctrine to validate an ineffective will.

The deceased’s valid 1998 will left the bulk of her estate to animal charities. Her nephew lived with her and cared for her during her later years. Between October and December 2010 she handed him the title deeds to her unregistered house and said that it would be his when she died. She later signed documents intended to leave her assets to him, but none was a valid will.

Mr Hollander QC, sitting as a deputy High Court judge, held that the house had passed to the nephew by donatio mortis causa. Alternatively, he awarded him £75,000 as reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. The charities appealed the DMC finding and the amount awarded. The nephew cross-appealed on the amount.

1. The appeal was allowed in part. The alleged donatio mortis causa (DMC) was ineffective and the declaration transferring the house to the claimant was set aside. The challenges to the alternative £75,000 award under the Inheritance (Provision for Family and Dependants) Act 1975 were dismissed.

2. Jackson LJ, with whom Patten LJ and Sales LJ agreed, held that a valid DMC requires: contemplation of impending death; a gift conditional upon that anticipated death, which remains revocable and lapses if the donor survives it; and delivery of dominion over the subject matter. The doctrine is anomalous because it permits a transfer on death without compliance with the formalities in the Wills Act 1837 or Law of Property Act 1925. It is therefore confined to its proper bounds and requires strict proof.

3. Contemplation of impending death means anticipation of death in the near future for a specific, identified reason. It does not include mere recognition that an elderly person is approaching the end of a natural lifespan. Vallee v Birchwood [2013] EWHC 1449 (Ch) was wrongly decided because that requirement was not met there.

4. On the assumed facts, the deceased was not suffering from a fatal illness, facing a dangerous operation, or undertaking a dangerous journey when she gave the deeds to the claimant. Her words were testamentary in character, not a conditional deathbed gift. Her later attempts to make wills were powerful evidence that she believed a will was needed to transfer the house. Although delivery of the title deeds of unregistered land satisfied the dominion requirement, the first two requirements were not met.

5. The first-instance judge had considered all relevant matters when assessing reasonable financial provision. In the absence of legal error or an award outside the permissible bracket, the Court of Appeal would not substitute its own assessment. The £75,000 award therefore stood.

• Court of Appeal (Civil Division): Allowed the charities’ appeal against the DMC declaration, but dismissed both parties’ challenges to the £75,000 alternative award under the Inheritance (Provision for Family and Dependants) Act 1975.
• High Court, Chancery Division: Mr Hollander QC, sitting as a deputy High Court judge, held that the deceased had made a valid DMC of her house. Alternatively, he awarded the claimant £75,000 as reasonable financial provision.