06 June 2013

[2013] EWHC 1449 (Ch) 

High Court, Chancery Division (Jonathan Gaunt QC sitting as a deputy High Court Judge)

The Court clarified the circumstances in which a donatio mortis causa will arise and addressed costs issues in the context of professional ‘heir hunters’.

Mr Bogusz stated to his adult daughter, the claimant Ms Vallee, that he did not expect to live to see her again. He handed her the keys to his house, along with the title documents. He stated that it was his wish that she have the house when he died. Mr Bogusz died four months later without a will. As Ms Vallee had been formally adopted earlier in her life, it was assumed without argument that she was not his heir for the purpose of an intestacy. A professional ‘heir hunter’, the defendant Mr Birchwood, traced members of the Mr Bogusz’s family in the Ukraine, and obtained letters of administration.

Ms Vallee issued proceedings, seeking a declaration that the administrator, Mr Birchwood, held Mr Bogusz’s property on trust for her, based on a donatio mortis causa. She was successful in the Oxford County Court.

Rejecting the administrator’s appeal, Jonathan Gaunt QC addressed the circumstances in which a donatio mortis causa will arise. He held that there was no objective temporal measure of whether a donor’s death was ‘impending’. It was sufficient that Mr Bogusz actually contemplated his death at the time when he made the gift. Thus, it did not matter that four months elapsed between the gift and his death.

It was also sufficient evidence of his intention to transfer ‘dominion’ to his daughter for Mr Bogusz to give the keys to his property and the title documents. His continued use and occupation of the property up until his death did not negative the intention to transfer dominion.  Mr Bogusz' behaviour was consistent with the intention to make a gift conditional on death.

The case highlights that deathbed gifts can remain effective, despite being made well before the donor’s death. Practitioners will also note the court’s decision to make the professional ‘heir hunter’ bear the costs of the action, which he had brought hoping to profit from the estate. The case is an indication of judicial attitude towards these professionals.