DMCs - Summaries of the donatio mortis causa PDF

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Summaries of the donatio mortis causa...

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DMCs; or death-bed gifts (between inter vivos gifts and testamentary gifts) Not meet criteria of will’s act + s52 LPA + s1 LPA Equity will not assist a volunteer – DMC exception of this equitable doctrine. Clear evidence has to be provided to show that there is a DMC: settlor = capacity + property at issue has to be capable of forming the subject matter of a DMC. Sen v Hedley – explain conformity of subject matter (cf below). It is well established that there are three principal requirements of the modern DMC: 1. the gift must be made in contemplation of the donor's death impending death; 2. the gift must be conditional upon the death of the donor; and 3. there must be a parting with dominion over the subject matter of the gift 4. to which might be added a fourth requirement, that the donor should have the requisite capacity to make such a gift. DOCTRINE OF MARK POLOWSKI - A question which has vexed equity lawyers for years is whether there can ever be a donatio mortis causa when the subject matter of the gift is land. This and other questions on the scope of death-bed gifts generally were considered by the Court of Appeal in Sen v Headley ([1991] Ch 425) and Woodard v Woodard ([1992] RTR 35; [1991] Fam Law 470). Under a donatio mortis causa, the donor passes possession of the subject matter of the gift (for example a diamond ring) to the donee but on condition that it is not to become the donee's absolutely until the donor's death. The ring remains the donor's property until, when he dies, the condition precedent is fulfilled and the donor's intention comes into effect. The principle forms an exception to the general rule that a person may only dispose of his or her property after death by means of an instrument executed in accordance with the provisions of the Wills Act 1837. Essentially, four conditions must be satisfied for an effectual donatio mortis causa. 1. First, the gift must have been made in contemplation of death. In the words of Farwell J in the leading case of Re Craven's Estate ([1937] 1 Ch 423, 426), where death happened in 5 days (near future): "the gift must be made in contemplation of death, by which is meant not the possibility of death at some time or other, but death within the near future, what may be called death for some reason believed to be impending." The test is subjective and, therefore, it is the donor's own state of mind which is relevant. Moreover, the fact that the death does not occur in the manner contemplated by the donor is immaterial (Wilkes v Allington [1931] 2 Ch 104). The principle will apply where the donor is seriously ill but also, for example, where he is expecting to die as a result of a dangerous mission (Agnew v Belfast Banking Co [1896] 2 IR 204). It appears from the case of Re Dudman ([1925] Ch 552) that a contemplation of committing suicide is insufficient but this case was decided prior to the Suicide Act 1961 (under which suicide is no longer a crime) and it is arguable that such a gift is now valid. The 'near future' is, needless to point out, a somewhat vague time period. The tenor of the decided cases is also that the impending quality of the death is to be judged subjectively. This means that as long as the donor was contemplating death it does not matter that his death came about not from an anticipated cause (eg a heart operation) but from an unanticipated cause (eg being hit by a bus on the way to the hospital). Notwithstanding that the earliest reported case of a DMC, that of

Hedges v Hedges, referred to the doctrine as being justified in cases where a man lies in extremity, or being surprised with sickness, and not having an opportunity to make his will' (per Lord Cowper). This lack of opportunity to make a will has never been adopted as a requirement of the application of the doctrine in subsequent authority. The recent decision of Vallee v Birchwood [2013] EWHC 1449 (Ch), [2014] Ch 271 came under much scrutiny. An elderly father, in poor health, handed his daughter a key and deeds to his house, saying he wanted her to have it when he died. The claim succeeded. But Jackson LJ held the first requirement— contemplation of impending death—was not satisfied in Vallee. The donor did not “have reason to anticipate death in the near future from a known cause”; if the donor survives that cause, the gift reverts, even though he will ultimately die nevertheless. Vallee was, the court held, wrongly decided.

2. Secondly, the gift must be intended by the donor to be conditional upon death. The effect of this requirement is that the subject matter of the gift will revert to the donor if he recovers from his illness and also that it is revocable by the donor at any time prior to his death. SEN v. HEADLEY (death in 3 days) - 'The house is yours, Margaret.’ It was not until Sen v Headley [1991] Ch 425, [1991] 2 All ER 636 that it was decided that a DMC could effect the transfer of real property as opposed to chattels. This case made clear that not only could a DMC avoid the protections afforded by the statutory requirements for executing a will but also the statutory requirements for the transfer of real property After the deceased's death the plaintiff discovered that he had put her in possession of the only key to the steel box containing the deeds. On the plaintiff's claim that the deceased had made a valid gift of the house to her in contemplation of death and the defendant's counterclaim for the return of the deeds, the judge dismissed the plaintiff's action and gave judgment for the defendant on the counterclaim, holding that the doctrine of donatio mortis causa had no B application to informal gifts of land which did not comply with the Law of Property Act 1925 or the Wills Act 1837. On appeal by the plaintiff:— Held, allowing the appeal, that the question whether land could be the subject of a valid donatio mortis causa, which was an anomaly and circumvented the Wills Act 1837, had to be determined as the law had now developed and especially that ^ concerning constructive trusts; that section 53(2) of the Law of Property Act 1925 excluded constructive trusts from the formalities for the transfer of land imposed by section 53(1) and, therefore, in the present development of the law, a gift of land by delivery of title deeds should not be excluded from the doctrine of donatio mortis causa; and that, since the gift had been made in contemplation of death, conditional on the donor's death and the donor had parted with dominion over the house, the house had D been transferred to the plaintiff by way of donatio mortis causa.

WOODARD v WOODARD - 'You can keep the keys, I won't be driving it any more.' The question whether dominion over the property has been transferred to the donee was also considered recently by the Court of Appeal in Woodard v Woodard ([1992] RTR 35; [1991] Fam Law 470. See also [1992] Conv 53 (Jill E Martin). Here, the defendant, whose father was in hospital suffering from leukaemia, had possession of his father's car and one set of keys to the car, in which he drove his mother, the plaintiff, to the hospital for visits to the father. The defendant did not have the car's registration document and it was unclear whether another set of keys existed. A few days

before his death, the father said to the defendant, referring to the car, "You can keep the keys, I won't be driving it any more." The defendant subsequently sold the car and the plaintiff, the widow and sole personal representative of the deceased, brought an action claiming the proceeds of sale (£3,900) as an asset of the estate. The primary question was whether there had been a valid donatio mortis causa of the car. It was common ground that, inasmuch as there had been a gift, it was conditional and made in contemplation of impending death, but there was a dispute whether the deceased had parted with dominion over the car. The Court of Appeal held that, where appropriate words were used, it was possible to make a gift where the object in question was in the possession of the donee as bailee before the gift was made, without it being necessary for the object to be handed back and redelivered. One of the arguments raised on behalf of the plaintiff was that the registration document (and possibly the certificate of insurance or a log book of servicing the car) should have been handed over by the deceased to the defendant. The Court of Appeal rejected this argument as these items were not documents of title to the car and, in any event, whether such documents were handed over was merely a matter of evidence as to the intention to make a gift and not things which it was essential to hand over to give the defendant dominion over the car. One further issue was the possibility that the deceased had retained a spare set of keys to the car. The consequence of retaining a duplicate set of keys was considered in Re Craven's Estate, ([1937] Ch 423, 428, per Farwell J) in the context of a locked box of valuables, where it was suggested that such a retention would be inconsistent with a sufficient parting with dominion over the property. In the present case, however, the Court of Appeal considered that the question was one of evidence as to whether the deceased had the requisite intention to transfer dominion over the car to the defendant. In this connection, it would have been wholly unreal to conclude that the defendant had not been given dominion over the car because the deceased might have had a second set of keys at home, which in any event he could not use unless circumstances arose in the way of his recovery which would anyhow operate to revoke the gift. Accordingly, the Court concluded that there was an effective gift of the car by way of a donatio mortis causa and the plaintiff was entitled to the proceeds of sale. Re Lillingston – conditionality on the settlor dying + not effective until then + can be revoked before the settlor passes away.

3. Thirdly, the donor must part with dominion over the property before his death. In effect, this means that there must be a delivery of the subject matter of the gift, or the essential indicia of title thereto, during the donor's lifetime. There is no distinction between a delivery antecedent to the intention to make the gift and a delivery concurrent with or subsequent to the gift (Re Stoneham [1919] Ch 149). Delivery is usually effected by the physical handing over of the chattel itself to the donee or, alternatively, by giving the means of attaining the property to the donee (for example the keys to a safe or desk). In some cases, it is sufficient if the donor delivers to the donee a document which is the essential evidence of the former's title to the property (Re Weston [1902] 1 Ch 680, (Post Office Savings Bank book)). King v Dubrey [2014] - The claimant lived with and cared for his elderly aunt, J. After her death, he contended that she had made a DMC of the house to him. The 15th to 21st defendant charities, which were residual beneficiaries under J's will, contested the DMC. The Chancery Division held

that, on the evidence, the DMC had been properly made and the property would pass to the claimant. The case is the most recent authority on the law of DMC, which involves a present gift made in contemplation of death, which is neither entirely made inter vivos nor testamentary. King v Dubrey [2015] - It has tightened up the requirements for a DMC as DMCs are a way of avoiding the stringent requirements for making a valid Will and are considered to be open to abuse. DMC is an equitable doctrine concerning a gift which remains conditional until the donor’s death. It is a gift made during the lifetime of the donor but in contemplation of their imminent death for a specific reason. The donor effectively does all that is in their power to transfer title to the asset to the donee during their lifetime but it is conditional until death. If the donor subsequently attempts to give the asset to the donor by way of a document this is inconsistent with them having made a DMC. 4. The final pre-condition for an effective donatio mortis causa is that the property is capable of being the subject matter of such a gift. Although pure personalty (Birch v Treasury Solicitor [1951] Ch 298) (for example chattels, savings certificates, insurance policies, etc) is eligible to pass under the rule, there are conflicting decisions where the property comprises shares (Staniland v Willott (1852) 3 Mac & G 664 (valid gift of shares). Contrast Re Weston [1902] 1 Ch 680) . The giving of the donor's cheque is not enough because this is not property but merely a revocable order to the bank to make payment to the payee (Re Beaumont [1902] 1 Ch 889; Re Leaper [1916] 1 Ch 579). By contrast, it is clear that choses in action are capable of passing but only if the delivery of the document (for example a banknote) is sufficient to transfer the chose in action (Birch v Treasury Solicitor [1951] Ch 298).

Keeling v Keeling - https://www.willclaim.com/keeling-v-keeling-failure-deathbed-gift/...