3- Deathbed gifts

Question 1

What is a deathbed gift?

Answer 1

Where a donor purports to make a gift at a time he expects to die, but title to the property had not passed while the donor was still alive.

Where it is a chose in action or land the effect of death is to vest title in the donor’s personal representatives, rather than the donee.

Question 2

What is Donatio Mortis Causa?

Answer 2

= gift in contemplation of death.
The equitable doctrine which can compel the representatives to perfect the donee’s title, even though the donee is a volunteer.

Question 3

Sen v Headley [1991]- on why DMC is anomalous

Answer 3

Nourse: “Let it be agreed that the doctrine is anomalous.” 2 reasons:
1. It is immune to the Statute of Frauds 1677 and the Wills Act 1837.
It is an exception to the rule that equity will not perfect an imperfect gift.

Question 4

Birch v Treasury Solicitor 1951

Answer 4

CoA expressly stressed that the courts must not allow DMC to be used as a device to validate ineffective wills (i.e. wills not effective under the statute).

Question 5

Law Commission Consultation Paper (2017) ‘Making a Will’ para 13.1

Answer 5

1. It is anomalous in that it is neither a gift made in a will, nor a gift made during lifetime; it is a hybrid.”
2. Rejects option of statutory codification as this would promote it and increase its prominence.
3. Observes DMC doctrine abolished in Scotland, 2016
   Does not form a definite view in favour of or against abolition.
4. BUT DMC doctrine may continue to serve a useful purpose, because it “softens” the hard edges of formalities law.

Question 6

Justification for validating a DMC?

Answer 6

1. Recognising difficult to complete formalities on death-bed
2. Operating outside the will as immediate, albeit revocable, gift
3. Prevent legatee denying deceased’s wishes

Question 7

King v Dubrey [2015]- required

Answer 7

Jackson- “I must confess to some mystification as to why the common law has adopted the doctrine of DMC at all.

The doctrine obviously served a useful purpose in the social conditions prevailing under the later Roman Empire.

But it serves little useful purpose today, save possibly as a means of validating death bed gifts. Even then considerable caution is required.”

Question 8

Sen v Headley [1991]- Requirements

Answer 8

Case: D was in hospital and near death. Told his former partner R that ‘the house is yours. You have the keys. They are in your bag. The deeds are in the steel box’.

After D’s death R discovered that D in fact put the only keys to the steel box holding the deeds in her bag.

Decision: D had made a valid DMC to R of the house.

Requirements:
1. Gift must be made in contemplation of impending death. Need not be expectation of death.

2. The gift must be conditional on death
3. The property or ‘indicia of title’ must be delivered to the donee. Must reflect passing of dominion not just possession.
4. The property must be capable of being passed.

Question 9

Gifts must be made in contemplation of death cases?

Answer 9

Smallcombe v Elder's Trustees (1963);
Sean v Headley (1991);
King v Dubrey (2015);
Wilkes v Allington (1931);
Vellee v Birchwood (2013)

Question 10

Smallcombe v Elder’s Trustees (1963)- requirement 1

Answer 10

Hale- While an immediate expectation of immediate death is not required, something more is required than a mere recognition of the inevitability of death itself.

The donor must have been contemplating a comparatively early death for some cause or other, whether it be an existing illness, a dangerous journey or extreme old age.

Question 11

Sean v Headley (1991)- requirement 1

Answer 11

Donor had been readmitted to hospital, and aware not long to live. He had inoperable pancreatic cancer.

Question 12

King v Dubrey [2015] CoA, requirement 1- Facts

Answer 12

Case: in 1998 C’s aunt left her the bulk of her estate, including her house, to 7 charities.
In 2007 C went to live with her aunt who was becoming increasingly frail and became her carer.

1. In 2010, 4 months before her death, when in reasonable, but deteriorating health, she handed the title deeds of the house to C saying ‘this will be yours when I go’
2. In Feb 2011 she wrote a doc stating she left everything to C. BUT her signature was not witnessed.
   Died in April 2011.

None of the 2010/2011 docs were a valid will, so 1998 will remained effective, but C brought an action claiming a deathbed gift.

Question 13

King v Dubrey [2015] CoA, requirement 1- Judgement

Answer 13

Jackson:
1. Insufficient that donor was simply elderly person.

2. The donor must have good reason to anticipate death in the near future from an identified cause.
3. The death which D is anticipating need not be inevitable. The illness or event can be one which he may survive (but then the gift fails).
4. BUT the crucial conversation took place between 10 October and 10 December 2010. By then June was 81 but she was not suffering from any specific illness and had not visited a doctor for some time.
5. She could have changed her will. She was an intelligent retired police officer.
6. If she had changed her will the solicitors would have talked to her in the absence of C and ensured she understood the new will and she intended the consequences.
7. One of those consequences was that the animal charities, which she had supported for many years, would inherit nothing on her death, so important that it is discussed with her.

Question 14

King v Dubrey [2015] CoA- History

Answer 14

1. DMC is a principle of Roman law. Even Roman jurists found it perplexing since some of its characteristics are of legacy and some are of gift.
2. It is surprising that it survived the fall of the Roman Empire.
3. I must confess to some mystification as to why the common law has adopted the doctrine of DMC at all.
4. The doctrine obviously served a useful purpose in the social conditions prevailing under the later Roman Empire. But it serves little useful purpose today.
5. What D says to those who are ministering to him in the last hours of his life may be a less reliable expression of his wishes than a carefully drawn will.
6. The will may have been prepared with the assistance of a solicitor and in the absence of the beneficiaries. There are no such safeguards during a deathbed conversation.
7. The words contained in a will are there for all to see. There may be much scope for disagreement about what D said to those visiting or caring for him in the last hours of his life.
8. It is therefore important to keep DMC within its proper bounds. The court should resist the temptation to extend the doctrine to an ever wider range of situations.

Question 15

Wilkes v Allington [1931]- requirement 1

Answer 15

Doesn’t matter if donor dies from different causes.

Case: Donor made a number of incomplete gifts to his nieces in contemplation of his impending death from cancer.
U died 6 weeks later after catching pneumonia.

Decision: U had made a valid DMC even though cause of death was not that which was contemplated.

Question 16

Vallee v Birchwood [2013]- requirement 1

Answer 16

Case: August 2003 donee visited donor, her elderly father who was in poor health and coughing. She said she would next visit him at Xmas. He said he did not expect to live until then so he wanted her to have the house when he died. He handed her the deeds and keys. He died in December.

Decision:
1. Valid DMC. The fact he thought we would die within 5 months and then he did was sufficient to fulfil this requirement.

2. Evaluation- King v Dubrey- did not think the requirement was satisfied in this case. D was approaching the end of his lifespan but he had no reason to anticipate death in near future from a known cause. He had ample opportunity to make a will to leave his house to his daughter.

Question 17

Gift must be conditional on death cases?

Answer 17

King v Dubrey;

Wilkes v Allington

Question 18

King v Dubrey- requirement 2

Answer 18

1. The gift must have been intended to take effect only on the occurrence of the contemplated death.
2. D reserves the right to revoke the gift at will, and it will automatically lapse if he does not die soon enough.
3. Requirement not satisfied on the facts. The words ‘this will be yours when I go’ are more consistent with a statement of testamentary intent, rather than a gift.

Question 19

Wilkes v Allington 1931- requirement 2

Answer 19

1. In cases where early death is inevitable the law relaxes the requirement that D should specifically require the property back if he survives.
2. Tomlin- The line is fine, because when a man is smitten with a mortal disease, he may know that there cannot be any recovery. Yet I apprehend that a man it that situation in point of law, is capable of creating a good DMC.
3. King v Dubrey- “In my view, subject to this qualification (Tomlin’s quote), the court should treat proper compliance with the second requirement as an essential element of DMC”.

Question 20

Delivery of subject matter must be passed with a view of ‘parting with the dominion’- cases?

Answer 20

King v Dubrey 2010;
Woodward;
Birch v Treasury Solicitor 1951 
Re Lillingston 
Sen v Headley [1991]

Question 21

King v Dubrey- Requirement 3

Answer 21

1. Dominion over the house had been delivered to C when he aunt gave him the deed.
2. The fact that the claimant kept the title deeds in his bedroom at June’s house, rather than depositing them at a bank or a solicitor’s office, does not affect the position
3. Dominion means:
   (a) the subject matter, or
   (b) some means of accessing the subject matter, or
   (c) documents evidencing entitlement to possession of the subject matter.

Question 22

Woodward v Woodward

Answer 22

Case: Father gave his son a set of keys to the car but retained a set for himself.

Court decided the important point to consider was why the keys were retained. If the donor intended to still use the car then the dominion had not passed.

BUT court held there was a valid DMC because the father had said ‘you can keep the keys. I won’t be driving anymore’.

Need not deliver the subject matter itself for chattels, can just deliver access- i.e. keys.

Question 23

Birch v Treasury Solicitor 1951

Answer 23

Case: D, who was near to death, gave the donees her post office savings book and 2 bank books and said that she wanted them to have the money in the banks if she died. Died soon after.

Decision: For choses in action it is sufficient to hand over documents that constitute evidence of title

Question 24

Re Lillingston

Answer 24

Donor gave key to a trunk, which contained jewellery, and key to safe deposit box at Harrods, which contained key to safe deposit box at National Safe Deposit Co. Valid DMC of jewellery and contents of both deposit boxes.

Question 25

Sen v Headley [1991] - requirement 3

Answer 25

Case: D gave R the only keys to steel box containing deeds to the house.
Decision:
1. There can be a valid DMC of land where there is effective (constructive delivery of essential indicia of title.

2. Fact that H retained own set of keys to house not material.

Question 26

Effect of a DMC?

Answer 26

The doctrine functions by CT. Once donor has died title to the prop will have passed to his representatives. Where the conditions are satisfied equity will require the representative to hold the prop on trust for the donee.

Question 27

Cosnahan v Grice (1862)

Answer 27

1. The burden of proof is on the donne. Many opportunities and temptations present themselves to unscrupulous persons to pretend deathbed gifts, that there is always danger it is fabricated.
2. AND it is easy to mistake the meaning of a person languishing in mortal illness and to convert the expressions into an actual gift of property.
3. No case will prevail unless supported by clear evidence.

Question 28

Kind v Dubrey on need for strict requirements

Answer 28

should require strict proof of compliance with those requirements.
The courts should not permit any further expansion of the doctrine. … It is easy for unscrupulous treasure hunters to adjust their recollections in order to gain huge rewards. Even people who are honest may remember conversations and events in a manner favourable to themselves.”