Deathbed Wills: King v Chiltern Dog Rescue

In the above case decided earlier this year the principal issue was whether the deceased’s words and conduct during the month leading up to the date of her death gave rise to a donatio mortis causa – a Deathbed Will (DMC).

The deceased had been divorced many years ago and had no children. She had a love of animals and was a volunteer for several animal charities. It was common knowledge within her family that she intended to leave her property to the animal charities she supported. In 1998, she made a Will in which she left some nominal legacies to various people but thereafter the residue of her estate was left to several animal charities.

The claimant was the nephew of the deceased. He had a chequered history having been made bankrupt in 1990 and subsequently found guilty acting as a company director despite his disqualification. He spent 12 months in prison as a result of this action. On his release, he separated from his wife and eventually in 2007 somehow ended up going to live with his aunt. They entered an arrangement whereby he provided some level of care for her and she in turn provided a home and subsistence for him.

The claimant’s evidence was that on occasions the deceased said that the house would be his after her death. There was then a series of actions as follows:

• 19^th October 2010 – the deceased wrote a note purporting to leave her house and property to the claimant in the hope that he would care for her animals until their death.
• Collected the deeds to the property and then spoke to the claimant stating “this will be yours when I go” at which point she handed the deed to him.
• 4^th December 2011 – she prepared a document which stated “in the event of my death I leave the house, garden, car and everything to the claimant in the hope he will care for my animals”.
• 24^th March 2011 – the claimant prepared a Will using words downloaded from the internet at the request of the deceased. That Will purported to give everything to the claimant.
• 10^th April 2011 – the deceased passed away.

None of the documents prepared in the months leading up to her death complied with the requirements of the Wills Act. The charities, therefore, sought distribution of the estate in accordance with the 1998 Will.

The claimant sought a declaration that the property had passed to him on death and in the alternative made a claim under the Inheritance Act seeking that the Will failed to provide reasonable provision for him.

The court at first instance accepted the claimant’s evidence that there was a valid DMC and that the claimant was the owner of the property from the date of death namely 10^th April 2011.

The charities appealed. The court considered what:

1. Is required for a valid DMC
2. The claimant must make a gift on the basis that he is anticipating his death.
3. The deceased must have made the gift on the understanding that if he died the claimant would keep it. The deceased makes the gift on the basis that if he survives the property is retained by him.
4. The deceased must have made the gift on the basis that he could revoke that gift at any time.
5. The gift is made on the basis that if the claimant were to die first then the property would pass back to the deceased.

Questions for the court were therefore whether or not the deceased was contemplating her death. By the time the documents were prepared and the actions taken by her, she was 81 years of age. There was however, no evidence of any ill health. The court of appeal felt that she could have made a new Will. Had she done so the solicitor would have made sure she understood that the charities named in her previous Will would receive nothing. The court could not see that there was any real evidence to say that the gift was made in contemplation of her death.

The court of appeal then considered whether there was any evidence that the gift was only to take place on her death. They held that the words “this will be yours when I go” was more consistent with a statement of intent as opposed to a conditional gift. This was supported by the fact that subsequent to having made this statement the deceased then tried to execute a further Will to reflect this intent. Had she made a valid DMC then the house would not have been hers to dispose of under that Will.

The third requirement is that the subject matter of the gift must have passed to the claimant. The title to the property in question was unregistered and the deceased handed over the deeds to the claimant. The court did feel that this third limb of the requirement was satisfied. However the earlier two were not satisfied and the court’s decision was that the deceased was in late 2010 able to make a new Will (she had capacity) or a DMC but, in fact failed to do either hence the property was retained as part of her estate. The court did, however, uphold the initial court’s decision that under the Inheritance (Provision for Family and Dependants) Act 1975 an award of £75,000 should be made to the claimant.

Contentious trusts and probate

For advice on probate litigation contact Amanda Melton, partner and expert on probate disputes today. Please call us 01494 790047. Alternatively please email amanda.melton@ibblaw.co.uk or complete the online form.