Irwin Mitchell | Focus on Wills, Trust, Estates and Disputes | The value of doing things properly

The importance of getting your affairs properly in order was highlighted once again this year in the Court of Appeal case of King v The Chiltern Dog Rescue and others [2015] EWCA Civ 581.This case involved the examination and narrowing of the little known doctrine of Donatio Mortis Causa,which translates roughly as “a gift made in anticipation of death”.

What if you come towards the end of your life and realise that you have not left your estate to those you truly want to inherit? The problem in these situations is that to transfer property on death requires a valid will and that the transfer of land in your lifetime must always be carried out formally in writing and by executing a deed. That is why, in some circumstances, the court will invoke this somewhat strange rule that the normal formalities don’t apply because it was a gift made in anticipation of death.

The Chiltern Dog rescue case concerned the gift of a house by an elderly lady, Mrs Fairbrother, to her nephew,Mr King.

In March 1998,Mrs Fairbrother made a will, leaving some small gifts to friends and relatives and leaving the bulk of her estate to seven charities, including the Chiltern Dog Rescue. By 2007, Mrs Fairbrother was frail and elderly and Mr King went to live with her and to care for her. Around November 2010, she presented Mr King with the title deeds to her house and said:“This will be yours when I go”.

Mr King claimed that his aunt’s choice of words and the way she looked at him made it clear that she knew her health was failing and that her death was approaching. He took the deeds from her and placed them in his wardrobe for safekeeping.Mrs Fairbrother died in April 2011.During the six months before her death,Mrs Fairbrother signed three separate documents, purporting to leave her property to Mr King but unfortunately none of these documents constituted a valid will.

The will of 1998 therefore took effect, and Mr King was faced with the proposition of being forced to move out of the house.He had nowhere else to live. He argued successfully at court that the house had been gifted to him in anticipation of his aunt’s death.

However, the charities appealed the case to the Court of Appeal and were successful in overturning the decision on the basis that the original judge had incorrectly applied the law. The decision to overturn the original judgment hinged on the fact that Mrs Fairbrother, although elderly and frail, did not have a reason to expect to die imminently such as having terminal cancer or a potentially mortal wound. Therefore the house had not been gifted in anticipation of death.

The lesson from this case is simple.Get your affairs in order as early as possible and do it properly through a solicitor.Had the documents Mrs Fairbrother signed been valid wills then this case would have never come about and Mr King would still be living in the house.Although Donatio Mortis Causa exists for exceptional circumstances, it is not the type of rule that I would recommend anyone to rely on.

To stop situations like this from arising, I would recommend that a person reviews their will regularly; at least every five years and whenever there is any significant change in their life.This is the best way that you can ensure that the ones you love benefit from your estate after you die.

If you would like more information or to discuss any of the topics raised please contact Liam Brooke 0113 220 6225 – solicitor in the Will Trust & Estate Disputes team at Irwin Mitchell. Or email Liam –