Court of Appeal rules on donatio mortis causa – gifts in contemplation of death

Posted: 11/06/2015

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The Court of Appeal has recently ruled on the scope of the doctrine of donatio mortis causa or 'DMC' in modern law in the case of Kenneth Paul King v (1)The Chiltern Dog Rescue (2) Redwings Horse Sanctuary [2015] EWCA Civ 581. 

DMC is a principle of Roman law which has passed into English common law. It is essentially a gift which D (the donor) makes because he anticipates death. D makes the gift to R (the recipient) on the understanding that if D dies, R will keep it. D may revoke the gift at any time. If D survives or if R predeceases D, D will receive the gift back.  

In this case the deceased donor, June, made a will in 1998 in which, after some modest legacies to friends and relatives, she left the residue of her estate to seven animal charities. 

The claimant was the deceased’s nephew. He had lived with his aunt for the last few years of her life and he claimed that on a number of occasions she had told him that her house would be his after her death. On one occasion she gave him the deeds to her property saying to him 'this will be yours when I go'. She later wrote two 'wills' recording her intention that the claimant should receive her house, but these did not comply with the formalities for the execution of wills and were not valid. 

The judge at first instance held that June had made a valid donatio mortis causa to the claimant and the gift of the property to him took effect on her death, leaving very little in her estate to pass to the charities. The charities appealed. 

The Court of Appeal held that the law of DMC must be kept within its proper bounds. It noted that the doctrine of DMC in the context of English law is an anomaly. It enables a donor to transfer property on his death without complying with any of the formalities of the Wills Act 1837 in relation to the execution of wills or the Law of Property Act 1925 in relation to the transfer of property. Therefore the law of DMC paves the way for the various abuses that the statutes are intended to prevent.

The Court of Appeal held that there are three requirements to constitute a valid DMC:

• D contemplates his impending death;
• D makes a gift which will only take place when his contemplated death occurs. Until then D can revoke the gift;
• D delivers dominion over the subject matter of the gift to R ('dominion' being defined as physical possession of the subject matter, some means of accessing it or documents evidencing title to it). 

The Court of Appeal found in this case that although the deceased was elderly, there was no evidence of any specific illness and she could not be said therefore to be in contemplation of her impending death. If she wanted to leave her property to the claimant then she was able to go to a solicitor and make a new will. She would have been advised on the consequences of this gift which would in effect mean that the charities, whom she had supported for years, would inherit nothing on her death.

As to the second requirement, the court found that the fact that she had made two (albeit ineffective) wills after she had told the claimant that he was to have the property and had handed over the deeds to him was inconsistent with the proposition that she had already disposed of the property by way of a DMC.  

Going forward, strict proof of all three elements will be necessary and the evidence must be unequivocal, thereby ensuring that the safeguards provided in legislation cannot be bypassed.

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