King v The Chiltern Dog Rescue & anr [2015] EWCA Civ 581 On appeal from: [2015] WLR (D) 245

WTLR Issue: September 2015 #152






June Margaret Fairbrother (deceased) lived at 12 Kingcroft Road, Harpenden (property) with a number of cats and dogs, of which she was very fond, as she had no children. It was common knowledge within her family that she intended to leave her estate to animal charities which she supported. By a will dated 20 March 1998 (last will) the deceased left her residuary estate to seven such charities (charities). The claimant, who was a nephew, came to live with the deceased, when she was 78 years old, in the summer of 2007. The arrangement was that he would care for his aunt in return for a home to live in and subsistence. According to the claimant, six months before her death, the deceased presented him with the title deeds to the property (which was unregistered land) and said to him that ‘this will be yours when I go’. Her tone of voice and appearance indicated to him that she knew that her health was failing and that death was approaching. He took the title deeds and put them in his wardrobe. Both before and after this occasion the deceased wrote notes, and a form of will (signed though not witnessed), in which she purported to leave the property to the claimant in the hope that he would care for her animals until their deaths. The deceased died on 10 April 2011 and the dogs were sent to a dogs’ home. As the unwitnessed ‘will’ was formally invalid, the terms of the deceased’s last will took effect. The claimant, however, brought proceedings claiming that the deceased had made a donatio mortis causa of the property in his favour; alternatively that he was entitled to reasonable financial provision out of her estate under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act). Mr Hollander QC, in a reserved judgment handed down on 1 July 2015, had not found it an easy question whether to accept the claimant’s evidence but considered that the documents which the deceased had signed during the last months of her life constituted corroborative evidence and, despite considerable circumspection, decided that the deceased had made a valid donatio mortis causa. In reviewing the authorities, the judge followed Vallee v Birchwood. Thus, even though the words spoken by the deceased and act of handing over the title deeds occurred four to six months before her death, he concluded that this constituted a donatio mortis causa and, as he found that she had the necessary capacity to make and did not subsequently revoke the gift, it took effect on her death. Alternatively, the judge concluded that the claimant was a dependant and had a good claim for reasonable financial provision under the 1975 Act which he quantified in the sum of £75,000. The charities appealed.

Counsel details

Counsel Ms Penelope Reed QC (Five Stone Buildings, 5 Stone Buildings, Lincoln’s Inn, London, WC2A 3XT, tel 020 7242 6201, e-mail and Mr Mark Mullen (Radcliffe Chambers, 11 New Square, Lincoln’s Inn, London, WC2A 3QB, tel 020 7831 0081, e-mail, instructed by Wilsons Solicitors LLP (697 High Road, Tottenham, London, N17 8AD, tel 020 8808 7535, e-mail for the defendants/appellant.

Mr Edward Rowntree (Hardwicke Building, New Square, Lincoln’s Inn, London, WC2A 3SB , tel 020 7242 2523, e-mail instructed by Berry & Berry LLP (1-5 Longley Road, Walkden, Worsley, Manchester, M28 3JB, tel 0161 790 1411, e-mail for the claimant/respondent.

Legislation referenced

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