Analysis
The deceased, June Fairbrother, (D), a retired policewoman, made a will in March 1998 leaving legacies to friends and family, the 3rd to 14th defendants ,the executors and legatees and the residue to the 15th to 21st defendants, animal charities (the charities). In June 2007 D’s nephew, Mr King, the claimant (C) had a conversation with her. She was increasingly elderly and frightened of going into a home, and he agreed to move in with her to look after her. He had spent some time in prison as a result of an offence under the Companies Act and was living in the property of a business associate at a rental of £600 a month. He gradually wound up his business, which took about a year, and increasingly spent all his time with D living with her in her property (the property) as her dependant and carer. The property was the main asset in D’s estate. D never discussed the existence of a will with C but on a number of occasions told him that the property would be his after her death. In the period between November 2010 and March 2011 she signed documents some of which were witnessed, to the effect that C should have the property when she died. On 24 March 2011 she drafted a will to that effect but it was never witnessed. On a prior occasion, about four to six months before she died, D presented C with the deeds to the property saying ‘this will be yours when I go’ or words to that effect. As the property was unregistered, the documentation included an epitome of title from 1900 to date. It was clear that D considered that she was giving C what she thought he would need when she died, so that the property would belong to him. At the time, D’s general health was deteriorating. She had not yet become bed-ridden but this happened fairly shortly afterwards. C took the bundle of documents from D, wrapped them in a plastic bag and put them in his wardrobe. He had not seen the deeds before and it seems that the day D gave them to him she had been out with a friend. C believed D collected the deeds that day from a solicitor or bank. D died on 10 April 2011 and the will was admitted to probate on 28 February 2012. C initially brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) as a dependent of D, but, subsequently, made a claim that D made a donatio mortis causa, or gift in contemplation of death (DMC) of the property to him between four to six months before her death by handing him the deeds to the property saying ‘this will be yours when I go’ or similar words.
The charities opposed C’s case in respect of the DMC on the grounds that C was an unreliable witness and that even if his evidence was accepted, or largely accepted, the DMC case was not made out. They also challenged his right to any payment in respect of the 1975 Act.
Held
D made a valid DMC to C of the property [52 and 68]. In the event it was necessary to consider the claim under the 1975 Act C was entitled to £75,000.
While a considerable degree of caution was necessary in approaching C’s DMC evidence, the evidence of the various unsuccessful attempts by D to make a new will in C’s favour was important corroboration that in the period shortly before her death, D was seeking to leave her estate (including the property) to C. All of these attempts were unsuccessful in law but there was no challenge to their authenticity. DMC was not a principle which is likely to be known to any lay person and it could perhaps be inferred that the possibility of such a claim arose in the course of discussions between C and his lawyers. Not many lawyers had familiarity with the principle and it was not surprising that it was not immediately identified as a possible cause of action [35]. Unregistered land could be the subject of a DMC. What was required in the case of property which was not capable of physical delivery was for the donor to part with dominion over the essential ‘indicia of title’ [14].
DMC cases required the strictest scrutiny. It was argued that D did not have the capacity to make the gift. However, there was no medical evidence and evidence of D’s intentions over a period time indicated her wish to give the property to C.
For a DMC the gift had to be (1) made in contemplation, although not necessarily in expectation, of impending death; (2) made upon the condition that it is to be absolute and perfected only on the donor’s death, being revocable until that event occurs and ineffective if it does not; (3) there had to be a delivery of the subject matter of the gift, or the essential indicia of title thereto, which amounts to a parting with dominion and not mere physical possession over the subject matter of the gift [41].
- (1) The gift had been made in expressly in contemplation of death at a time when it appeared that D was increasingly preoccupied with her impending death, as evidenced by the failed wills [47]. C had been cross-examined at length about the alleged conversation with D. In oral evidence he reiterated that she had gone out that day with a friend and then went to get the deeds, and handed them to him making it clear the house was to be his when she died. The words used, in context, were suggestive of a gift conditional on death and not consistent with any other interpretation. In particular, the suggestion that the purpose of handing the deeds to C was to facilitate his position as executor could be rejected [43]. It had been argued that there was no indication that D was contemplating her impending death when she made the gift but the recent authority Vallee v Birchwood [2013] WTLR 1095 demonstrated that it was not necessary for the death to occur within days of the gift. The contemplation of death within five months there was contemplation of impending death [47].
- (2) The gift had not been revoked. There was no inconsistency between a gift conditional on D’s death made in anticipation of that death on the one hand and on the other hand seeking to perfect that intended gift by a further attempt to create a will [51].
- (3) D had parted with physical possession. C placed the deeds in a wardrobe in his room in the house, in a place which was known to him and which was part of the property used only by him. Further the terms of the conversation with D indicated that she did indeed intend to part with dominion over the property, but that was to be conditional on her death. The judge in Vallee v Birchwood had made clear that the continued enjoyment of the property during the life of the donor was not incompatible with an intention to make a gift which was effective on the donor’s death [49].
The 1975 Act claim
A balance had to be struck between C’s services as a carer and the payments board and lodging provided by D. It was clear from the evidence that D had accepted responsibility for C and the will made no provision for this in all the circumstances. The benefits C had received were relatively modest and for a relatively short period. He was 58, unlikely to get much further employment, and had no significant assets or home apart from the property. But a greater lump sum would overstate the dependency under the 1975 Act and, for that purpose, constitute a windfall [67].
JUDGMENT MR CHARLES HOLLANDER QC: [1] The 15th-21st defendants (the charities) are the residuary beneficiaries of the will of the late June Margaret Fairbrother (June), dated 20 March 1998 (the will), which also leaves a total of £19,000 in legacies to friends and family. June died on 10 April 2011 and the will was admitted …Continue reading "King v Dubrey & ors [2014] EWCH 2083 (Ch)"