King v The Chiltern Dog Rescue & Anor [2015]
In King v The Chiltern Dog Rescue & Anor [2015] EWCA Civ 581 (09 June 2015) the Claimant issued a claim in the Chancery Division for a declaration that his Aunt had made a donatio mortis causa, that her house passed to the Claimant when she died and, as an alternative that he should receive monetary provision from his late Aunt’s Estate under 1 (1) (e) Inheritance (Provision for Family and Dependants) Act 1975.
A donatio mortis causa is a gift made in contemplation of death and is neither entirely made during ones lifetime nor, a gift which takes effect on death. It must be made in contemplation, though not necessarily in expectation, of the death of the person, in circumstances which show that it is to take effect only in that event. It is recoverable by them if that event does not occur and void if the intended beneficiary dies before it occurs.
In this case there were twenty-one Defendants to the claim most of whom were happy to let the Court decide but the Charities who stood to inherit most from the Estate challenged this using the Inheritance (Provision for Family and Dependants) Act 1975.
The Judge in his reserved judgment found in favour of the Claimant and assessed that the Claimant should be awarded reasonable monetary provision of £75,000 in the event that the donatio mortis causa, which he held as effective, was proven to be incorrect. Accordingly the Charities appealed to the Court of Appeal about the Judge’s decision.
On the 20th March 1998, the Claimant’s Aunt had made a Will in which she left small legacies to friends and family with the bulk of the Estate to seven charities including the Defendants. The Aunt had spent her working life as a police officer and was the freehold owner of her house valued at £350,000. She had been divorced many years earlier without issue.
The Claimant was her Nephew. He and his wife had separated in 2007 and he went to live with his Aunt. It was agreed he would take care of her when necessary and she would provide a home for him and give him financial support.
The Claimant contended his Aunt told him many times that the house would be his and on the 19th November 2010 she wrote a brief note to the effect that if she died the house would be left to him with a proviso hoping that he would care for her animals until they died. His Aunt also, around that time, collected her deeds from storage.
The Claimant’s witness statement recounted the conversation with her and the Judge, in the earlier hearing, considered it to be accurate.
- “ On another occasion, about four to six months before she died, June presented me with the deeds to the Property and again said to me that “this will be yours when I go”. As the property is unregistered, the documentation included an epitome of title from 1900 to date. From her tone of voice and her seriousness when she gave me the deeds, I had no doubt in my mind at the time, that she thought that she was giving me what she thought I would need when she died, so that the Property would belong to me. She was a smart woman and understood that the deeds represented ownership of the house. At that time, June’s health was deteriorating. She had not yet become bed-ridden, although this did happen shortly afterwards. June was not prone to using phrases of the sort, “when I go,” as she was not the sort of person to spend time morbidly considering the end of her life. Her use of the words and the way she looked at me at that time made clear to me that she knew her health was failing and that her death was approaching. I took the bundle of documents from her and wrapped them in a plastic bag and put them in my wardrobe. Prior to this incident, I had not seen the deeds before.”
The Claimant’s Aunt wrote a further note on the 4th February 2011 leaving everything to him, asking him to look after her animals, with her friend signing as witness. The Claimant on the 24th March 2011 prepared his own form of will utilising wording from the internet which his Aunt signed, but did not have witnessed, leaving everything to him with a clause asking him to care for her animals until they died. She died on the 10th April 2011 and the animals were put in a dogs home.
Lord Justice Jackson observed that the documents she signed did not conform with s.9 of the Wills Act which states that no will is valid unless,it is in writing and signed by the person making the will, or by some other person in his presence and by his direction. It appears that person intended by signing to give effect to the will and the signature was made or acknowledged by that person in the presence of two or more witnesses present at the same time; and each witness either: (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator. Her will was therefore invalid.
However her will made on the 20th March 1998 was valid.
He considered the law of donatio mortis causa, a principal of Roman Law, would be a gift made up of elements which would have to be satisfied as follows:
- The Aunt makes the gift because she anticipates her death.
- She makes the gift to him on the basis that if she dies he will retain it
- That if she lives she would get the property back
- She could revoke that gift whenever
- If the Nephew died before her she would receive the gift back.
Lord Jackson considered all the relevant legal authorities and then summarised the case law that was produced from the cases. He considered that there were three requirements to constitute a valid donatio mortis causa.
- D contemplates his impending death.
- D makes a gift which will only take effect if and when his contemplated death occurs. Until then D has the right to revoke the gift.
- D delivers dominion over the subject matter of the gift to R.
He further observed what he and other judges had noted about applying donatio mortis causa to English law, that it was inconsistent as it did not conform with s.9 of the Wills Act or s.52 of the Law of Property Act since it allowed a person to transfer property on their death without complying with either statute, making it open to abuse.
The judge thought that it couldn’t be said the Aunt was contemplating her impending death at the relevant time. She was not suffering from a fatal illness nor was she about to undergo a dangerous operation or to undertake a dangerous journey. He went on that if the Aunt was dissatisfied with her existing Will and wished to leave everything to the claimant, she should have gone go to her solicitors and made a new Will.’
- “If June had taken that course, the solicitors… would have ensured that June understood the new Will she was making and the intended consequences. One of those consequences was that the animal charities, which June had supported for many years, would inherit nothing on her death.”
He noted that the Lord Chancellor had drawn attention to this risk of abuse in Jones v Selby and continued that he found it mystifying why the common law had ever adopted the doctrine. After considering the applicable principles he had to decide if donatio mortis causa had been established. His considered that the appeal by the Charities should be allowed as the facts of the matter did not give effect to a donatio mortis causa but, in respect of the assessment of £75,000 awarded by Judge in the High Court, this was correct.
He called upon the other Justices to agree with him, the dismissal of the donatio mortis causa and the award under “the 1975 Act” to go unchallenged by either party. The Defendants’ Counsel had contended a lower figure of £40,000 was more applicable but Claimants counsel considered £75,000 was not enough as he was 60 yr and had given up his previous accommodation to live with and care for his Aunt. Lord Jackson dismissed the appeal and cross appeal in respect of the award.
Lord Justice Patten agreed but made his own observations and Lord Justice Sales further agreed but noted
- “Like Jackson LJ, I prefer to leave open the question whether the judge’s approach to assessment of the evidence of Mr King satisfied the strict and rigorous standards which are required in this sort of case”.