Gifts Made Shortly Before Death – Changes in the Law

I wrote recently on  death bed gifts, outlining the surprising change in the law of donatio mortis causa, following the case of Vallee –v- Birchwood, which made such gifts easy to effect.

Perhaps, unsurprisingly, the law has been changed again in the case of King –v- Chiltern Dog Rescue [2015] ENWCA Civ 581.  In this case, the Court of Appeal made it far harder to make a valid gift under the doctrine of donatio mortis causa.

The facts of this case were almost identical to the earlier case. The deceased, Mrs Fairbrother, gave to Mr King, who was living with her at the time, the Deeds of the unregistered property saying “This will be yours when I go”.  There were no witnesses to that statement. The gift was made between 4/6 months before her death.  It is clear, however, that she knew that her health was failing at that time.

Lord Justice Patten held that even if Mr King’s evidence was credible, it was not sufficient to establish a donatio mortis causa. He disallowed the gift and laid down new strict guidelines as to what evidence is needed to make a valid gift in contemplation of death. This is for now that :-

1. Firstly the donor must be contemplating death in the near future for a specific reason;
2. Secondly, that the gift can only take effect on death;
3. Thirdly, that until death, the gift may be revoked at will;
4. Fourthly, the gift will be revoked by default if the donor does not die quick enough.  It was not specified exactly how long the donor had to live for revocation to take effect;
5. Fifthly, the donor must give over the subject matter or title documents.
6. Sixthly, evidence as to the gift must be unequivocal.

Executors will now be in a far stronger position in relation to any such claims, which will only be successful with careful preparation.

It is one of the interesting aspects of a civil law jurisdiction, from the practitioner’s perspective, that the law is in constant flux.  It is also the reason why a good lawyer will never say that the prospects of success in a case are more than 80%. What was surprising, was the speed in which my earlier work proved valueless.

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