• In the case of King v Dubrey [2015] EWCA Civ 581, the Court of Appeal set out the requirements for a donatio mortis causa and made them somewhat stricter.

Facts of King v Dubrey [2015] EWCA Civ 581

  • June, now deceased, owned a property amongst other things
  • June had a will made in 1998 which left the bulk of her estate (including the house) to named charities
  • It was also common knowledge within the family that she intended to leave the house to the charities
  • Whilst on her deathbed, the C nephew alleged she gave him the deeds of the home and said it was his when she goes
  • She also allegedly said it would be his on a number of occasions, and had written a note of the same substance months prior
  • Another document was written of the same substance, and the C printed a document from the internet as a will which June signed to revoke previous wills and gift the nephew the home in return for the upkeep of her animals until their deaths
  • He did not care for the animals, sending them away soon after June’s death
  • None of these documents complied with the Wills Act, s9 and thus her 1998 will took effect
  • C brought proceedings for the home, claiming June effected a donatio mortis causa

Issues in King v Dubrey [2015] EWCA Civ 581

  • Was there a donatio mortis causa, under which the home would be the C’s?
  • What are the requirements for this exception to the valid lifetime gifts and dispositions?

Held by the Court of Appeal

High Court ruling overturned; C’s claim was unsuccessful – the aunt had not made a donatio mortis causa.

Lord Justice Jackson

To constitute a valid donatio mortis causa, there are 3 requirements [50]:

  1. “D contemplates his impending death”
  2. “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”
  3. “D delivers dominion over the subject matter of the gift to R”

Seeing as this principle would pave the way for all of the abuses legislation sauch as the Wills Act and the Property Act strive to prevent [51], Jackson LJ was of the view that it should be kept within “proper bounds”. Courts should resist extending the doctrine to wider situations [54].

Therefore, Jackson LJ laid down where the requirements would apply:

Requirement 1:

  • “D should be contemplating death in the near future for a specific reason” [55]
  • Citing cases such as Wilkes v Allington, Craven’s Estate, Birch and Sen, Jackson LJ showed “it is clear on the authorities that D must have good reason to anticipate death in the near future from an identified cause” [55]
  • It would not apply in the case of an elderly man approaching a natural end but no reason to expect death in the near future, he has the opportunity to seek advice and make a will, as in Vallee v Birchwood [56]
  • Nor would the requirement apply where the donee recovers, it shall lapse and not run if they later die which was not anticipated when making the gift [57]

Requirement 2 [58]:

  • “D should make an unusual form of gift. It will only take effect if his contemplated death occurs. D reserves the right to revoke the gift at will. In any event the gift will lapse automatically if D does not die soon enough.”
  • This should be treated by courts “as an essential element”

Requirement 3 [59]:

  • Recognising ‘dominion’ to be a difficult term to decipher, Jackson LJ concluded it to be “physical possession of (a) the subject matter or (b) some means of accessing the subject matter (such as the key to a box) or (c) documents evidencing entitlement to possession of the subject matter”

Applying these to the present case:

  • Requirement 1 did not apply: there was no evidence of a specific illness and thus it cannot be said that June was contemplating impending death, she could have spoken to solicitors without C present [67-69]
  • Requirement 2 did not apply: ““this will be yours when I go” are more consistent with a statement of testamentary intent, than a gift which was conditional upon June’s death within a limited period of time” [71]
  • Requirement 3 applied under Sen as it was an unregistered property for which she handed over the deeds [73]

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