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Court of Appeal rules on Donatio Mortis Causa

25 Aug 2015

Donatio Mortis Causa (DMC) is a principle that dates back to Roman law. Essentially, it allows, subject to certain requirements, a donor to make a gift in anticipation of their impending death. It was the focus of a recent case.

What were the facts of the case?

Kenneth Paul King (“the claimant”), the nephew of the deceased, Mrs Margaret Fairbrother had lived with his aunt for the last four years of her life. There was an arrangement between the claimant and Mrs Fairbrother that the claimant would care for Mrs Fairbrother who would in turn provide a home for the claimant.

About 6 months before Mrs Fairbrother’s death, it was alleged by the claimant that whilst caring for his aunt, Mrs Fairbrother had given him the title deeds to her house (worth around £350,000) and said “this will be yours when I go”. Subsequently Mrs Fairbrother attempted to make a Will leaving her assets to the claimant, “in the hope he will care for my animals as long as reasonable.”

However, this document Mrs Fairbrother signed was not a valid Will. On Mrs Fairbrother’s death, the Will that was effective was a previous Will leaving a number of modest legacies to friends and relatives and the rest of her estate to seven charities. Nothing was left to the claimant.

The claimant’s argument was that Mrs Fairbrother had effected a valid DMC of the house to him when she said, “this will be yours when I go”. This claim was upheld by the High Court, and the claimant was also awarded a further £75,000 as ‘reasonable financial provision’ in consideration of the fact that Mrs Fairbrother had maintained him for the previous four years.

The charities appealed claiming their entitlement to inherit under the Will and arguing that there had been no valid ‘death bed gift’.

The Judgment

The Court of Appeal found Mrs Fairbrother had satisfied two of the three conditions necessary for a DMC, namely she had given the property deeds to the claimant and that she intended the gift to only take effect on her death. However she was found to have not satisfied the ‘strict and rigorous standard’ of the third requirement to show that Mrs Fairbrother thought her death was ‘imminent’. Lord Justice Patten commented, “…I accept that she was probably conscious of her generally failing health and wanted to arrange her affairs. But she did so by attempting to make Wills…”

The fact Mrs Fairbrother attempted to create a Will was sufficient for the court to evidence Mrs Fairbrother did not believe her death to be ‘impending’. On this basis, the claim of a valid DMC failed.

What does this mean for you?

This case is a reminder that the court will take the view that one will be deemed to have ‘ample opportunity’ to take advice and make a Will unless imminent death is reasonably anticipated (i.e. one is on their ‘death bed’).

The strict standard the court has here maintained reminds us not only how vital a Will is, but more importantly to ensure that a Will is valid.

If you would like to discuss what is involved in preparing a Will, please contact Alice Clewes, Partner at Hay & Kilner.

Call: 0191 232 8345

Email: Alice.Clewes@hay-kilner.co.uk