Malcolm Finney looks at an arcane area of law.
In short, the answer to the question in the article title is ‘no’, they are alive and kicking and the conditions which deathbed gifts must satisfy to be valid have recently been clarified by the Court of Appeal in the case of King v The Chiltern Dog Rescue [2015] WTLR 1225, some three hundred years after the first case on deathbed gifts was heard by the courts in Hedges v Hedges (1708) Pree Ch 269, 24 ER 130.
So, what is a deathbed gift (more commonly known by its Latin name donation mortis causa or donatio for short)? One might think that a donatio cannot be that difficult to define; it’s simply a gift made when a person is dying (possibly whilst lying in bed at the time!). That wouldn’t, in fact, be all that far from the truth but, per se, isn’t quite sufficient to ensure the gift’s validity in law.
The problem with the concept is that it neither satisfies the conditions for a lifetime gift nor a testamentary (i.e. gift by will) disposition.
Wills Act 1837
Gifts which are intended to take effect on death (as is the donatio) must satisfy the very strict formalities of the Wills Act 1837. However, deathbed gifts do not satisfy these requirements and hence should not be valid, but have still been held by the courts to be valid.
The King case
The recent case of King concerned a gift made by Ms Fairbrother to her nephew, Kenneth King, of the property in which she lived (and in which Mr King lived for four years prior to her death in order to look after her). The gift was not made under Ms Fairbrother’s will, but by simply handing Mr King the title deeds to her house some four to six months before her death. Allegedly, at the time of handing over the keys, she had said: ‘This will be yours when I go’. The court at first instance held that the gift was a donatio, but on appeal by the charity, the Court of Appeal held that the gift was not a valid donatio.
The Court of Appeal held that Ms Fairbrother was not contemplating her impending death when she handed over the deeds to her house and the gift was not conditional on her death within a limited period (conditions which a donatio must satisfy).
It is also necessary that the donor must part with dominion over the subject matter of the gift, which Ms Fairbrother had done by gifting the title deeds of her property to Mr King (Ms Fairbrother’s house had not been registered and thus title deeds demonstrated ownership, whereas most properties now are registered with Land Registry, in which case title deeds are irrelevant).
The gift must be dependent/conditional on the death of the donor. So, for example, a donor prior to a serious operation may make a deathbed gift on the basis that he/she does not survive the operation. In the event that he/she does so survive, the gift is automatically revoked.
In King, the Court of Appeal also expressed the view that any evidence of a donatio must be tested by the courts with extreme scrutiny because invariably the only parties aware of it will typically be the donor and donee (with no other witnesses); at the time of such scrutiny by the courts, the donor will, of course, have died leaving only the donee to provide evidence of the gifting (whose version of events may be somewhat biased).
Despite the failure in King, some two years earlier in Vallee v Birchwood [2013] WTLR 1095, a donatio was held to have been made of a property, the donor having told the donee (his daughter) ‘I do not expect to live much longer and might not be alive by Christmas’.
So, despite its somewhat checkered history over 300 years, the donatio mortis causa is alive and well.
Practical Tip:
Despite the recent success in Vallee v Birchwood [2013] WTLR 1095, the area is fraught with uncertainty and it is probably unwise to rely on deathbed planning as a serious option. Having said that, in the event of a terminal illness, for example, if no will has been made the donatio does offer a relatively simple and straightforward option to a gift, in particular, family heirlooms and other chattels (eg paintings, jewellery, pens, stamps, etc.) at the very last minute.
