Donatio mortis causa – not a way to validate an invalid will

In King v The Chiltern Dog Rescue [2015] EWCA Civ 581, the English Court of Appeal had to decide whether to overturn a decision of the Chancery Division of the High Court to permit a man to inherit his aunt's house under the principle of donatio mortis causa ("DMC").  This rarely used principle, which dates back to Roman times, permits people to make informal "deathbed donations" which would otherwise not be valid lifetime gifts or testamentary dispositions. 

Background

Mrs Fairbrother was born on 5 June 1929 and died on 10 April 2011.  During her lifetime she and her deceased husband built up modest assets, which at the time of Mrs Fairbrother's death (Mr Fairbrother having died some time before), mostly comprised her home worth GBP350,000.  Neither Mr nor Mrs Fairbrother had any children.

All parties agreed that Mrs Fairbrother was particularly interested in animal welfare.  In 1998 she made a will leaving a number of modest legacies and giving the rest of her estate to seven animal charities.

In 2007 Mr King, Mrs Fairbrother's nephew, went to live with Mrs Fairbrother.  Her husband had died by that time, and she was becoming increasingly frail.  Mr King agreed to look after Mrs Fairbrother in return for free room and board.  In 2010 and again some three weeks before her death, Mrs Fairbrother signed two documents purporting to leave her estate to her nephew.  However, neither of these documents was witnessed, so neither met the requirements of a will under English law.

Mr King's claims and decision at first instance

After Mrs Fairbrother's death, Mr King brought two claims against her estate:

1. That she had made a DMC to him of the house. The evidence he provided in support of this claim was his account of various conversations they had had over the years that the house would be his when she died and the fact that Mrs Fairbrother had given him the deeds to the house before her death; and, in the alternative:
2. That he should receive reasonable financial provision from Mrs Fairbrother's estate under the Inheritance (Provision for Family and Dependants) Act 1975 ("Act"). He alleged that he was being maintained by Mrs Fairbrother prior to her death because she was providing him with free bed and board.

The Deputy High Court Judge found in Mr King's favour.  He found that Mrs Fairbrother had made a DMC of the house.  He also found that if he was wrong on that decision, Mr King deserved an award of GBP75,000 under the Act.

Appeal

The animal charities appealed both decisions.  They alleged that Mrs Fairbrother had not made a DMC and a more reasonable award under the Act would have been GBP40,000.  Mr King supported the Deputy Judge's decision on DMC, but said that a more reasonable award under the Act would have been GBP150,000.

The Court of Appeal cautioned that DMC was a doctrine that was open to abuse.  Quite often the conversations in which the DMC was alleged to have been made were not witnessed (as in this case).  It would be easy "for unscrupulous treasure hunters to adjust their recollections" so as to allege DMC.  Further, DMC cannot be used to validate invalid wills which, under English law, there is no method to rectify.  The Court of Appeal said that the Court should resist the temptation to expand the doctrine, and even expressed puzzlement as to its continued existence.

The Court of Appeal found that for a claim of DMC to succeed, the applicant would have to prove that at the time the DMC was made:

1. The donor contemplated his or her impending death;
2. The donor made a gift which would only take effect if and when that contemplated death occurred. Until then, the donor had the right to revoke the gift; and
3. The donor had to deliver dominion over the subject matter of the gift to the recipient.

Because of the conditional nature of the gift, and the fact that it could be revoked, if the donor survived then the recipient would have to return the gift if the donor asked.

In this case, the Court of Appeal found that Mrs Fairbrother, though elderly and frail, was not contemplating her impending death at the time she made the DMC.  She had no specific or good reason to anticipate her death.  The Court of Appeal gave examples of cases in which such a death had been contemplated, such as before a risky operation or during a severe illness.

For this reason, the charities' appeal against the Deputy Judge's DMC finding was successful.  However, the Court of Appeal upheld the Deputy Judge's decision on Mr King's claim under the Act.

Conclusion

First, it is important to remember that England and Wales does not have a mechanism to validate invalid wills.  This sets that jurisdiction apart from other jurisdictions in the modern era, such as Australia and Hong Kong.

Secondly, the Court of Appeal has sent a strong warning to claimants that DMC will be hard to prove.  Rather than seeking to rely on that doctrine, a recipient would be better served by encouraging the donor to execute a new (valid) will or codicil.

Post script: for our Hong Kong readers

We have previously written on the doctrine of DMC in Hong Kong.  See our earlier post here.

If you wish to discuss this post or any other matters, please contact Richard Norridge or your usual Herbert Smith Freehills contact.