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Donatio Mortis Causa - no substitute for a Will

View profile for Holly Pearce
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On 9 June this year the Court of Appeal heard the case of King v The Chiltern Dog Rescue and others, which involved Redwings Horse Sanctuary a charity with a local centre. This evolved around the principle of “Donatio Mortis Causa”, in other words, a death bed gift.

Such a gift made in anticipation of death can take the gift outside of the estate of the donor.

This case involved the estate of an elderly lady whose main asset was her house. She had lived with her nephew and several months before she died handed her house deeds to him and said something to the effect of, "This will be yours when I go." However neither she did not transfer her property to her nephew nor indeed change her Will to leave the gift to him, although she did make some attempt to change the Will but this was not done correctly and was, therefore, not valid.

Her Will, written before this attempted gift, left her residue to several animal charities. The charities proceeded with the administering her estate on the basis that everything should be distributed as per the Will, however the nephew asked the court to consider the gift that had been made to him prior to her death.

The first judge to look at this matter agreed that the nephew was telling the truth and allowed the gift to stand.

However, and understandably, the charities involved appealed. The Court of Appeal looked at the case again and found several flaws. It found that such a gift can only be made in contemplation of imminent death, whereas there was a gap of several months after this attempted gift and the lady had not been seriously ill at the time of the attempted gift.

The Court also found that it must be an immediate gift, not one in contemplation of death as was the case here. It did not, however, suggest that the nephew had not been truthful. If she had wanted the gift to be made in contemplation of her death, she needed to make a new Will.

It was very apparent from the lady’s actions that she had wished for the gift to be made to her nephew; however she failed to execute a valid Will. 

This shows the continued need to regularly review your Will and to seek appropriate advice on Wills or gifts you wish to make when you die, and to ensure that any Will is executed properly.

If you would like to speak to someone about writing or updating your Will, please contact our team today.

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