The recent decision of the Court of Appeal in King v The Chiltern Dog Rescue  EWCA Civ 581 has indicated a return of the courts' narrow interpretation of deathbed gifts, the legal term for which is donatio mortis causa ("DMC").
As detailed in our previous briefing on the High Court decision in this case the deceased was Ms June Fairbrother, a retired police officer who had a great fondness for animals. She made a Will in 1998 leaving £19,000 to various friends and family members, and the majority of her estate to seven animal charities.
Ms Fairbrother's nephew, Mr Kenneth King, lived with her from 2007 until her death. He claimed that between 4 four and 6 six months before Ms Fairbrother's death she handed him the epitome - (essentially a schedule of documents) - to her unregistered property and stated that "this will be yours when I go".
She later made two invalid Wills stating that Mr King was to receive her property in an expectation that he would care for her animals. After Ms Fairbrother's death Mr King gave her dogs to a dog's home.
At first instance the judge found that the actions of Ms Fairbrother had constituted a DMC and the property had effectively passed to Mr King on the date of her death. This decision relied on the recent decision of Vallee v Birchwood  EWHC 1449 (Ch), which had seemingly expanded the scope of DMC.
The Court of Appeal however overturned this decision and held that the required characteristics of a DMC had not been fulfilled. These characteristics are:
- A gift is made by the donor in anticipation of death
- The gift must be conditional upon death and
- There must be a parting with 'dominion' over the subject matter of the gift
The Court of Appeal held that the first characteristic was not established. Ms Fairbrother had been 81 at the time that she made the statement but she was not suffering from a terminal illness nor contemplating her imminent death. In those circumstances she would have been expected to change her Will rather than make a DMC. Jackson LJ highlighted the principle of DMC and that it should not be used to bypass the safeguards of the Wills Act 1837 or the Law of Property Act 1925. Jackson LJ expressly overruled the decision in Vallee.
It was also held that the second characteristic was not made out. The words spoken by Ms Fairbrother indicated her testamentary intention rather than a gift dependent on her death. This argument was further supported by the creation of the two invalid Wills as they supported the assumption that Ms Fairbrother still controlled the property and therefore did not believe that she had already disposed of it by means of a DMC.
On the final characteristic, it was held that the act of giving the epitome of the property to Mr King meant that this was fulfilled, which is a more relaxed position than the courts have previously taken. Despite this, all characteristics must be present for a DMC to be effective.
The case reasserts the narrow scope of deathbed gifts and is likely to ensure that they remain a rarely sought remedy through the Courts.