King v Dubrey [2015] EWCA Civ 581

Facts

• The claimant sought to establish that his aunt had made a valid donatio mortis causa of her house before her death.
• The aunt previously made a will in 1998, leaving her estate, including the house, to charity.
• As her health declined, the aunt gave the claimant the title deeds to her house, saying, “this will be yours when I go.”
• The claimant argued that receiving the deeds constituted a valid donatio mortis causa.
• The Court of Appeal considered whether the requirements for donatio mortis causa had been satisfied and if the house passed to the claimant rather than under the will.

Issues

1. Whether the donor was contemplating impending death from a specific cause, as required for a valid donatio mortis causa.
2. Whether the gift was conditional upon death and not merely a testamentary intention.
3. Whether the delivery of dominion (i.e., handing over the title deeds) was sufficient in the circumstances to effect a valid donatio mortis causa if the first two requirements were satisfied.

Decision

• The Court of Appeal found that the aunt was not contemplating death from a specific cause, but rather expressed a general awareness of mortality, which was insufficient for a valid donatio mortis causa.
• The aunt’s statement and her contemporaneous attempts to make a new will evidenced testamentary intent, not the requisite conditional gift upon death.
• Given the failure to satisfy the first two requirements, the court held there was no valid donatio mortis causa, regardless of the delivery of the title deeds.
• The house remained subject to the aunt’s 1998 will and passed to the intended charity beneficiaries, not the claimant.

Legal Principles

• For a valid donatio mortis causa:
  • The donor must contemplate imminent death from a specific cause, not just general mortality.
  • The gift must be conditional—taking effect only if death occurs from the contemplated cause and lapsing otherwise.
  • The donor must deliver dominion over the property to the donee, such as through physical possession or transfer of title documents.
• Testamentary intent, as indicated by statements or actions akin to making a will, disqualifies the transaction from being a valid donatio mortis causa.
• Donatio mortis causa operates as a narrow exception to the formalities and requirements of will-making and is not a substitute for a will.

Conclusion

The Court of Appeal reaffirmed the strict criteria for a valid donatio mortis causa and concluded that, where a donor merely anticipates natural death and expresses testamentary intent, such a gift fails; thus, the property must pass according to the will or rules of intestacy.