We’ve all heard the tales of an elderly relative pressing a prized heirloom into the hands of a relative and declaring that it will pass to them on their death and some may even have wondered if this “deathbed wish” was a legally binding promise. The recent case of King v Chiltern Dog Rescue [2015] EWCA Civ 58 has sought to clarify when a gift such as this, made in contemplation of death, known as a donation mortis causa (“DMC”) might be valid. 

There are three requirements which need to be met for a DMC to be valid; these are:

  1. That the person making the gift contemplates their impending death; 
  2. That they make a gift that will only take effect if and when their contemplated death occurs and they are able to revoke the gift up to that point; and
  3. They make some delivery of the subject matter of the gift, known as delivering the dominion. This could be, for example handing over the title deeds to an unregistered property. 

The King case concerned June Margaret Fairbrother. Mrs Fairbrother was an animal-lover, who made a will in 1998 leaving the majority of her estate to seven animal charities. Mrs Fairbrother’s nephew, Kenneth Paul King, who had lived with his aunt prior to her passing, claimed that his aunt promised him her home after her death. Between October and December 2010 Mrs Fairbrother presented Mr King with the deeds to the unregistered property and said that the property would be Mr King’s after she had passed. Mrs Fairbrother had also written three short documents, one before and two after the conversation in 2010, leaving Mr King her home, in the hope that Mr King would care for her animals after her death.  None of these documents was a valid will. 

Mrs Fairbrother died on 10 April 2011, and Mr King promptly dispatched all of her animals to homes and claimed, on his primary case, ownership of the house. At the trial the court found that whilst Mr King’s evidence was to be viewed with a “very considerable degree of circumspection”, the requirements for a DMC had been satisfied. 

The charities appealed. The Court of Appeal found that the first requirement was not satisfied as Mrs Fairbrother had not been contemplating her impending death. Mrs Fairbrother had not been suffering from a fatal illness or about to undergo an operation. The obvious thing for Mrs Fairbrother to have done would have been to go to her solicitor and make a new will. In addition the second requirement was also not satisfied; the language used by Mrs Fairbrother of “this will be yours when I go” was not consistent with her making a gift conditional upon her death within a limited period of time. In addition, the fact that Mrs Fairbrother had attempted to make a will was inconsistent with her having already disposed of her house by way of a gift to Mr King. The third requirement had been satisfied and handing over the title deeds to unregistered property did constitute delivering dominion, however, not all of the requirements had been satisfied and the appeal was successful. 

“Deathbed wishes” are an anomaly in English law as DMC allows a person to transfer property on his death without complying with any of the law on the preparation and proper execution of wills. Any person seeking to rely on a “deathbed wish” will be put to the strictest scrutiny by the courts. What this judgment means in practical terms is that if someone had the time and ability to go and make a validly executed new will then it is unlikely that a DMC will have been found to have been made.