As the opening comments of Charles Hollander QC in his judgment in King v Dubrey  EWHC 2083, make clear, a donatio mortis causa (DMC) takes effect as a historic and anomalous exception to the requirements of the Wills Act. It involves… a present gift which takes effect in the future and remains conditional until the donor dies. On death it becomes absolute. It has previously been described as being of “an amphibious nature, being a gift which is neither entirely inter vivos nor testamentary.” The task for the Court is to distinguish between a genuine DMC and an attempt to make a testamentary gift other than in accordance with the Wills Act. The test has, for over one hundred and fifty years, been a high one:
“…no case of this description ought to prevail unless it is supported by evidence of the clearest and most unequivocal character.”
The leading case is that of Sen v Headley  Ch 425 in which Nourse LJ set out the requirements of a DMC:
- That the gift must be made in contemplation, although not necessarily in expectation, of impending death.
- That the gift must be made upon the condition that it is to be absolute and perfected only on the donor’s death.
- There must be a delivery of the subject matter of the gift or the essential indicia of title thereto, which amounts to a parting with dominion and not mere physical possession over the subject matter of the gift.
It was in Sen that it was finally decided that it was possible for real property to be passed by a DMC, in that particular instance by the delivery of title deeds.
The decision in Sen was considered at first instances by Jonathan Gaunt QC (sitting as a deputy High Court Judge) in Vallee v Birchwood  2 WLR 543. He made it clear that the need for the contemplation of death did not mean that the donor had to be in extremis. In that case the gap of four months between the gift and death did not prevent a DMC. He also made clear that the continued enjoyment of the property during the life of the donor was not incompatible with an intention to make a gift which was effective on the donor’s death.
So what of Mr King? He was sixty, married but separated from his wife. The deceased was his Aunt, who had been a regular and constant feature in his life. By 2006/7, the deceased began to express concerns that she was getting old and was struggling to live on her own. Mr King agreed to help and moved into her home. Mr King lived with her for the four years up to her death. His evidence was that the deceased repeatedly expressed a wish that he should have the property and find a nice woman to share it with. Four to six months prior to her death, the deceased presented Mr. King with the deeds to the property, an epitome of title from 1900 to the present, saying to him “this will be yours when I go.” There was no dispute but that the deceased was also animal mad. By her only effective will the deceased left her estate to a series of animal charities. She did however make repeated attempts to pass the property by will but all failed. The effect of the DMC was to leave little or nothing to the charities.
The charities mounted a concerted attack on each and every limb of the claim: The court couldn’t be satisfied as to the deceased’s capacity; the words used did not suggest that the gift was conditional on her death; she did not contemplate her impending death; there was no parting with possession and the gift was revoked by her later attempt to leave it to Mr King in her failed wills.
The Court rejected each of these in turn and concluded that a DMC was made out. Of particular importance was the conclusion that the handing over of the deeds to the property was a sufficient parting with possession even though the deeds remained in her house, albeit in the bedroom of Mr King.
A note of caution must be sounded following this decision. Advice in relation to potential DMCs is a very difficult area. The case-law is sparse and such decisions as have been pursued to trial are peculiarly fact specific. Some of the defendant charities in King now have permission to appeal and the hearing is to be listed in late April. Watch this space!
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