The importance of getting your
affairs properly in order was
highlighted once again this year
in the Court of Appeal case of
King v The Chiltern Dog Rescue
and others [2015] EWCA Civ 581.This case
involved the examination and narrowing of
the little known doctrine of Donatio Mortis
Causa,which translates roughly as “a gift
made in anticipation of death”.
What if you come towards the end of
your life and realise that you have not left
your estate to those you truly want to
inherit? The problem in these situations is
that to transfer property on death requires a
valid will and that the transfer of land in your
lifetime must always be carried out formally
in writing and by executing a deed. That is
why, in some circumstances, the court will
invoke this somewhat strange rule that the
normal formalities don’t apply because it was
a gift made in anticipation of death.
The Chiltern Dog rescue case concerned
the gift of a house by an elderly lady, Mrs
Fairbrother, to her nephew,Mr King.
In March 1998,Mrs Fairbrother made a
will, leaving some small gifts to friends and
relatives and leaving the bulk of her estate to
seven charities, including the Chiltern Dog
Rescue. By 2007, Mrs Fairbrother was frail
and elderly and Mr King went to live with her
and to care for her. Around November 2010,
she presented Mr King with the title deeds to
her house and said:“This will be yours when I
go”.
Mr King claimed that his aunt’s choice of
words and the way she looked at him made it
clear that she knew her health was failing and
that her death was approaching. He took the
deeds from her and placed them in his
wardrobe for safekeeping.Mrs Fairbrother
died in April 2011.During the six months
before her death,Mrs Fairbrother signed
three separate documents, purporting to
leave her property to Mr King but
unfortunately none of these documents
constituted a valid will.
The will of 1998 therefore took effect,
and Mr King was faced with the proposition
of being forced to move out of the house.He
had nowhere else to live. He argued
successfully at court that the house had been
gifted to him in anticipation of his aunt’s
death.
However, the charities appealed the case
to the Court of Appeal and were successful
in overturning the decision on the basis that
the original judge had incorrectly applied the
law. The decision to overturn the original
judgment hinged on the fact that Mrs
Fairbrother, although elderly and frail, did not
have a reason to expect to die imminently
such as having terminal cancer or a
potentially mortal wound. Therefore the
house had not been gifted in anticipation of
death.
The lesson from this case is simple.Get
your affairs in order as early as possible and
do it properly through a solicitor.Had the
documents Mrs Fairbrother signed been valid
wills then this case would have never come
about and Mr King would still be living in the
house.Although Donatio Mortis Causa exists
for exceptional circumstances, it is not the
type of rule that I would recommend anyone
to rely on.
To stop situations like this from arising, I
would recommend that a person reviews
their will regularly; at least every five years
and whenever there is any significant change
in their life.This is the best way that you can
ensure that the ones you love benefit from
your estate after you die.
If you would like more information or to discuss
any of the topics raised please contact Liam
Brooke 0113 220 6225 – solicitor in the Will
Trust & Estate Disputes team at Irwin Mitchell.
Or email Liam – liam.brooke@irwinmitchell.com
For general enquiries
0808 291 3524
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