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Death bed gift challenge in the Court of Appeal

View profile for Heather Roberts
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The Court of Appeal has this month handed down its judgment in the case of Kenneth Paul King v Chiltern Dog Rescue and Redwings Horse Sanctuary [2015] EWCA Civ 581, which involved a appeal against a decision by the High Court last year, to allow a death bed gift of a property.

The Defendants in the case were two charities who, under a Will made in 1998 by June Fairbrother, were entitled to the majority of her estate. After her death in April 2011, her nephew Kenneth King, brought a claim against the charities, challenging the Will on the basis that a valid Donatio Mortis Causa (death bed gift) had been created, or in the alternative, for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. Mr King had lived with the deceased in the years leading up to her death, and was financially supported by her, and therefore brought this claim under the Act as a dependant.

Mr King claimed that his Aunt’s wishes had changed since her 1998 Will, and that in March 2011, she had signed a Will that he had prepared for her, leaving her property, worth around £350,000, to him. However, her signature on this Will was not witnessed, and was therefore it was not a valid Will.

A Donatio Mortis Causa can allow a gift to be made to someone, ‘on their death bed’, without having to comply with the strict formalities of the Wills Act 1837.  For a death bed gift to be valid, the person who is claiming it, has to show that the deceased made the gift in ‘contemplation of their death’.  The gift is conditional on that person’s death, and can be revoked by the donor at any time up to their death.  There also must be some form of delivery of the gift, amounting to a ‘parting of dominion’.

In this case, June Fairbrother had written a short note in November 2010 indicating that she wanted Mr King to have her house and property in the event of her death, and had had a conversation with him indicating that this is what she wanted. Similar conversations happened in the months leading up to her death, during which time, her health was deteriorating. There was then the unexecuted Will in March 2011, just a month before she died, which mirrored these wishes.  She then handed the deeds for the property to Mr King, which he argued amounted to delivery of the gift.

The High Court in 2011 found in favour of Mr King, and held that there was a valid Donatio Mortis Causa. The Judge ordered that the property would pass to Mr King. The Judge also ordered that in the alternative, if he was wrong about the validity of the death bed gift, Mr King would be entitled to a lump sum of £75,000 from the estate, as reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

The charities appealed this decision, both on the basis of the validity of the death bed gift, and the size of the alternative award under the Inheritance (Provision for Family and Dependants) Act 1975. The crux of the appeal was based on whether or not the gift was made ‘in contemplation of death’. The case law in the past has set out the requirement that the contemplation must be of impending death, and therefore more than someone just reaching the end of their life span, with their health deteriorating in old age. The purpose of this is to avoid people simply being able to bypass the requirements of the Wills Act, months prior to their death, and to protect estates from the abuse that could arise out of this.  A death bed gift cannot simply be used to validate improperly executed Wills.

The Court of Appeal decided that the High Court Judge had decided the case wrongly.  June was not suffering from any terminal illness at the time, and was simply approaching the end of her life span, and was not aware of any immediate threat to her life. The Court of Appeal therefore found that the gift was not made in contemplation of death, and took the very strict approach that, had she wanted to change her Will, she could have instructed solicitors to prepare it, and ensure that it was validly executed. The Judge commented that she “was an educated retired Police Officer, and there is not the slightest reason why she should not have taken that course”.

The Court then had to consider whether the alternative award of £75,000 under the Inheritance (Provision for Family and Dependants) Act 1975 was either too much, or too little, as was being argued by both sides respectively. The Court of Appeal refused the appeal in respect of this award, and Mr King was therefore awarded the £75,000 from the estate, in place of the death bed gift.

As a solicitor specialising in Will and estate disputes, this case is very interesting and has reinforced the very strict requirements for a death bed gift to be valid. In practical terms, it would appear that the question to ask when faced with potential claims like this, is whether the deceased had time and ability to execute a will or codicil to make the gift formally? If the answer is yes, then it is very unlikely that a Court will uphold a death bed gift.

If you think you may have a claim against someone’s estate, it is important that you seek specialist legal advice as early as possible.  The time limit for bringing certain claims is very short, and you could miss out on your claim if you wait too long.

For a fixed fee of £79.95, you can have a 30 minute appointment with myself, either on the telephone, or face to face, depending on your preference. We will take some details from you before the appointment, and I will then discuss your case with you, and what your options are. If your case is something that we can then help you further with, we can then discuss your funding options with you. For some cases, we can sometimes consider a “no win no fee” agreement, depending on the circumstances of your case. Call us on 0333 344 4772.

By Will, trust and estate disputes solicitor, Heather Korwin-Szymanowska

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