Davey & Anor v Bailey & Ors

A donatio mortis causa is an exceptional method of transferring property on death without complying with the formalities of a will. Its requirements must be strictly established: the donor must contemplate impending death for a specific reason, make a gift conditional on that death, and deliver dominion over the subject matter. The doctrine cannot validate an ineffective will or testamentary expression. A document recording general wishes to divide assets, rather than identifying property or evidencing entitlement to possession, does not ordinarily deliver dominion. Sympathy for intended beneficiaries cannot substitute for proof of the legal requirements.

The claimants, the sister and brother of Margaret Bailey, alleged that Margaret and her husband Alan made three deathbed gifts. Two alleged gifts arose from a written care-planning form recording intended distributions between the families. The third concerned the former matrimonial home, Troedyrhiw, and an alleged delivery of property documents.

The defendants, who inherited under Alan Bailey’s intestacy, disputed that any valid donatio mortis causa had been made. The central issues were whether the donors contemplated impending death for a specific reason, whether the alleged gifts were intended to take effect on death rather than through a later will, and whether dominion over the subject matter had been delivered.

1. Claim dismissed. None of the three alleged gifts satisfied the strict requirements of a valid donatio mortis causa.
2. The court applied the three requirements identified in King v The Chiltern Dog Rescue & Anor [2016] Ch 221: contemplation of impending death; a gift conditional on that death and capable of revocation during the donor’s lifetime; and delivery of dominion over the subject matter.
3. Mrs Bailey had contemplated her impending death from cancer. However, the evidence showed that the couple intended the written form to record wishes which Alan would implement by making a new will. It did not establish gifts intended to take complete effect on either death.
4. The alleged gifts of an equivalent value to the butcher’s business and of 50 per cent of the residue were insufficiently specific. The form was not a title deed or a document evidencing entitlement to possession. It was a record of testamentary wishes and could not amount to delivery of dominion.
5. As to the alleged gift of Troedyrhiw, Alan had not contemplated his death for a specific reason before his unexpected heart attack. His continuing treatment of the house as part of his assets also supported the conclusion that the statement concerning the deeds was testamentary rather than a completed deathbed gift.
6. The court noted, but did not decide, whether preregistration deeds or office copy entries relating to registered land could deliver dominion, or whether an executed transfer conditional on death might suffice. That issue was left for a case in which it was necessary to decide it.