Court of Appeal decision restricts the mysterious Donatio Mortis Causa exception to the Wills Act

9th June 2015 by

Since the Wills Act 1837 there have been strict laws on how property can be passed when someone dies; anyone who has made a will should have been told about the requirements for executing the will to ensure its validity.  Even before 1837, the Statute of Frauds 1677 set down provisions relating to wills having to be in writing.  On top of this, there are strict rules on agreements to transfer land having to be in writing, and (since the Law of Property Act 1925) executed by deed.

Unbeknown to most people though, in a small number of cases these well known statutes have been set to one side to allow an even older law, one that has survived since Roman times, to take precedence.

This rule is called Donatio Mortis Causa, and it operates in circumstances where a deathbed gift is made.  The rule provides that where a dying person makes a gift that is conditional on the donor dying, that gift will be enforceable immediately on the person dying.  The property will not form part of the donor’s estate and will not pass under the terms of the will or the rules of intestacy.  It applies to land as well as to any other property.

The rule flies in the face of the laws passed by parliament since the seventeenth century.  It requires nothing to be in writing, let alone by deed, and there is no need for witnesses; there is no requirement for formalities at all.  The only requirements have been that the donor takes some step to deliver the gift to the person he is giving it to, even though the gift does not take effect until the donor’s death.

The Court of Appeal has however made a decision clarifying the ground rules for whether Donatio Mortis Causa can apply.  In the case of King –v- Chiltern Dog Rescue [2015] EWCA Civ 581, judgment was handed down on 9 June 2015.  The court has said that for the doctrine to apply,

  1. The donor must be “contemplating her impending death”.  It is not enough that death is something that will happen eventually (it will of course happen to all of us); there must be some specific reason why death is imminent such as a fatal illness, dangerous medical treatment or a dangerous journey.
  2. The words used when the gift is made must make the gift at that moment, even if it is conditional on the death of the donor and can be revoked if he does not die.  If the words used are more like those of a will, saying what is to happen to the property in the event of death, then that will not be enough.  This is likely to be a very fine distinction in many cases.
  3. There must be clear and unequivocal evidence of the gift, and that evidence will be subjected to the strictest scrutiny.  Whilst this is clearly intended to allow the court to introduce some safeguarding into the process, it is still a far cry from the clear statements made by parliament that such transactions should be in writing and witnessed.

If this rule seems strange to you, you are not alone.  Even the judges who have dealt with all the recent case law have had difficulty working out what the requirements are, and have struggled to find any justification for the rule.  Lord Justice Jackson said in the King case “I must confess to some mystification as to why the common law has adopted the doctrine … at all”.

Whilst a more restrictive approach to this rule is undoubtedly to be welcomed, there must be real questions about why it is still with us at all.  When the rule was first formulated (early records show it in the sixth century by which time it was already well established) it would have served a valuable purpose.  In today’s world, it must be asked whether there is space for a rule that allows people to sidestep every protection against fraud that has been put in place for the last four hundred years.

If you need advice on anything raised in this article or on any aspect of contentious wills and probate, please contact Ben Parr-Ferris at ben.parr-ferris@healys.com.