Davey & anr v Bailey & ors [2021] WTLR 487

WTLR Issue: Summer 2021 #183

In the matter of: MARGARET BAILEY DECEASED AND ALAN BAILEY DECEASED

1. WENDY DAVEY

2. EIRON JONES

V

1. DAVID BAILEY

2. MYFANWY JEFFREYS

3. LESLIE DAVIES

4. PAUL DAVIES

5. MICHAEL DAVIES

Analysis

Alan and Margaret Bailey were a married couple who died each aged 71 within a few months of each other in 2019, leaving no children. Each left a will dated 28 May 2009 appointing the other as sole executor and sole beneficiary. After Mrs Bailey had passed away Mr Bailey attended a solicitor to make a new will, but it was not executed before he also died. The gift to his wife under his 2009 will failed, as she had predeceased him, and passed under the law of intestacy to his next of kin.

Mrs Bailey’s sister and brother, the claimants, claimed that the couple had made gifts of a substantial part of their sizeable estates in contemplation of their respective deaths in January 2019. The claimants relied in particular on a Macmillan Cancer Support form completed at the request of Mr and Mrs Bailey. This provided for the distribution of Mr and Mrs Bailey’s assets between family members.

Mrs Davey also claimed that Mr Bailey had made a further gift of a house, Troedyrhiw, in February 2019. Mrs Davey was helping Mr Bailey sort out documentation following Mrs Bailey’s death. She found a metal box containing pre-registration deeds and office copy entries for Troedyrhiw. Mr Bailey said that his wife and he wanted her to have the house and she should take the file as it was for her.

Held:

  1. 1) In order for a gift to constitute a valid donatio mortis causa three requirements needed to be satisfied:
    1. i) The donor contemplates their impending death.
    2. ii) The donor makes a gift which will only take effect if and when their contemplated death occurs. Until then the donor has the right to revoke the gift.
    3. iii) The donor delivers dominion over the subject matter of the gift to the recipient.
  2. (King v The Chiltern Dog Rescue [2016] applied).

The January 2019 claimed gifts

  1. 2) It was conceded that the first requirement was made out in respect of Mrs Bailey.
  2. 3) The evidence of Mrs Bailey’s wish that her husband would make a new will to carry into effect their joint wishes was strong evidence that the intention of each of them was not to make gifts that would take effect on death but to express wishes which Mr Bailey would incorporate into a new will. The second requirement was not made out.
  3. 4) The Macmillan form did not amount to a title deed or to a document showing entitlement to possession. It was a piece of paper on which testamentary wishes had been written. It did not satisfy the third requirement.

Troedyrhiw

  1. 5) There was no justification for a conclusion that prior to his unexpected heart attack Mr Bailey was contemplating his death for a specific reason. The first requirement was not made out. Mr Bailey’s conversations strongly suggested that his comments to the first claimant about the metal file was a statement of testamentary intention rather than a gift.

The claims were dismissed.

JUDGMENT HHJ JARMAN QC: [1] These proceedings concern the proper distribution of the estates of a devoted married couple, Alan and Margaret Bailey, who each died at the age of 71 within months of each other in 2019. They had no children. Each left a will dated 28 May 2009 in which each appointed the …
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Counsel Details

Richard Fowler (Maitland Chambers, 7 Stone Buildings, Lincoln’s Inn, London WC2A 3SZ, tel 020 7406 1200, e-mail clerks@maitlandchambers.com), instructed by CCW Law Solicitors Ltd (The Old Surgery, 5 Church Street, Llandybie, Ammanford, Dyfed SA18 3HZ, tel 01269 851905) for the claimants.

Alex Troup (St John’s Chambers, 101 Victoria Street, Bristol BS1 6PU, tel 0117 923 4700, e-mail clerks@stjohnschambers.co.uk), instructed by Graham Evans & Partners (Moorgate House, 6 Christina Street, Swansea SA1 4EW, tel 01792 655822, e-mail mail@geplegal.co.uk) for the defendants.

Cases Referenced

Legislation Referenced

  • Administration of Estates Act 1925, s46
  • Law of Property Act 1925, s52
  • Wills Act 1837, s9