Article: Gifts made in contemplation of death

Author
Charles Cooper

Date
January 2016

In King v. Chiltern Dog Rescue and another [2015] EWCA Civ 581 a frail 81 year old lady presented her nephew with the deeds to her property and told him: “this will be yours when I go.” She became bed-ridden shortly after, and died 4 to 6 months later. Her Will, which had been drafted 12 years previously, left a number of modest legacies to friends and relatives, the majority of her estate to 7 named charities, but nothing to the nephew.

The nephew commenced proceedings to, amongst other things, claim that the property had been given to him as a donatio mortis causa – a gift made in contemplation of death – a principle of Roman law which was codified under Justinian.

The Court of Appeal in that case found that (per Jackson LJ): (i) the deceased was not suffering from a fatal illness, nor about to undergo a dangerous operation or undertake a dangerous journey, and while it was obvious that most of her life span was behind her, it cannot be said that she was contemplating her impending death at the relevant time; (ii) the words “this will be yours when I go” are more consistent with a statement of testamentary intent, rather than a gift which would only take effect if her contemplated death occurs and will otherwise revert to her; and while (iii) handing the title deeds relating to her property to her nephew, where the property was unregistered, constituted delivering dominion over the subject matter of the gift, applying the decision in Sen v. Headley [1991] Ch 425; (iv) the requirements of the doctrine of donatio mortis causa were not satisfied.

In Sen v. Headley [1991] Ch 425, CA, an 80 year old gentleman who had been admitted to hospital suffering from an inoperable cancer of the pancreas, and had been informed that his condition would inexorably deteriorate, apparently slipped his keys into his partner’s handbag and informed her: “The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.” He died 3 days later, intestate.

Nourse LJ phrased the 3 general requirements for such a gift (at p.431) as follows:

“First, the gift must be made in contemplation, although not necessarily in expectation, of impending death. Secondly, the gift must be made upon the condition that it is to be absolute and perfected only on the donor’s death, being revocable until that event occurs and ineffective if it does not. Thirdly, 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.”

The Court of Appeal in Sen was only asked to look at the third of those requirements, and found that: (i) there was a constructive delivery of the title deeds equivalent to physical delivery; (ii) title deeds are the essential indicia of title to unregistered land; (iii) it could not be suggested that the deceased did not part with dominion over the deeds; (iv) as to whether he parted with dominion over the house, the question (following the decision in Birch v. Treasury Solicitor [1951] Ch 298) is one to be decided on the facts of the individual case, and in this case, he did; and (v) that land is capable of passing by way of a donatio mortis causa.

If the Court had been asked to look at the second requirement, it may be that the words “The house is yours” would not have been considered to have been a gift upon condition that it is ‘perfected only on the donor’s death, being revocable until that event occurs and ineffective if it does not’.

In Birch v. Treasury Solicitor [1951] Ch 298 a frail elderly woman had been admitted to hospital following an accident, and asked a friend to go to her flat and get a black bag containing bank books, saying: “I want you to take them home and keep them and if anything happens to me I want you and Frank to have the money in the banks.” Shortly after she said: “I think I am finished.” A few weeks later she gave instruction to the friend for the payment of a debt from the money in the bank with the words: “I would like you to pay this.”

The Court of Appeal in that case, also asked to look at the third requirement, found (per Evershed MR from p.300): (i) the delivery of bank books was a sufficient delivery of the subject-matter of the alleged gift; (ii) the words used by the deceased to request payment of a debt after the alleged gift were consistent with her having parted with dominion; and (iii) while bank balances (being choses in action) are incapable themselves of physical delivery, the relevant bank books are the essential indicia or evidence of title, possession or production of which entitles the possessor to the money or property purported to be given by a donatio mortis causa.

What is clear from these modern authorities is that the success of any claim of a donatio mortis causa will depend very much on the facts, which will require careful analysis.

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