Charities defeat nephew's claim of deathbed gift

A group of animal charities have asserted their right to a share of June Fairbrother's GBP350,000 home, which she left to them in her will.

Mrs Fairbrother, a retired police officer, was an animal lover who kept several pets and helped several animal charities with their work. In 1998 she had executed a will leaving modest legacies to various members of her family and naming seven animal charities as the residuary beneficiaries.

However, by the time of her death in April 2011, many things had changed. In 2007, her nephew Kenneth King, a former builder went to live with her in her house in Harpenden, Hertfordshire. By this time she had become frail, and the arrangement was that King would care for her and get free board and lodging.

King later claimed that, during this period, Mrs Fairbrother had promised him the house would be his after her death, even handing him the deeds to the property. She also wrote and signed a note stating that in the event of her death she left her house and her property to the claimant 'in the hope that he will care for my animals until their death'. This note was witnessed and signed by one of her friends. Two months before her death, she signed a will that King presented to her, having downloaded the form of words from the internet. The will is in a fairly standard form, but no-one witnessed her sign it.

Thus none of the documents she signed in the months before her death complied with the requirements of the Wills Act. The charitable beneficiaries of the will therefore expected to receive their legacies.

King applied for a court declaration that his aunt had already made him a gift of the house in anticipation of her death – a donatio mortis causa or DMC. The charities resisted this application. However, in July 2014, Charles Hollander sitting as a deputy High Court judge found in favour of King. Even though he regarded King's evidence of his conversations with Mrs Fairbrother with 'circumspection' he was persuaded by the physical evidence – the note, the invalid will, and the handing over of the deeds – that the gift had been genuine: Mrs Fairbrother had had capacity to make it and had not revoked it. Accordingly it took effect on her death.

The aggrieved charities appealed on the grounds that the judge should not have accepted King's account of Mrs Fairbrother's actions, or if he did then her actions did not amount to a DMC. They also submitted that she did not have capacity to make the DMC; or if she did, then she had revoked it by her subsequent (though ineffective) will-making.

The legal arguments heard by the Court of Appeal of England and Wales were necessarily detailed and technical, not least because the DMC doctrine is itself anomalous and unclear. As Mr Justice Jackson put it when giving judgment, the doctrine 'paves the way for all of the abuses which [statute law is] intended to prevent[...] I must confess to some mystification as to why the common law has adopted the doctrine of DMC at all[...] it serves little useful purpose today, save possibly as a means of validating death bed gifts [and] even then considerable caution is required'.

In the event, Jackson and his colleagues decided that Mrs Fairbrother was not in fact contemplating her impending death when she had the most crucial conversation with King. Even though she was 81 and frail, she was not suffering from any specific illness. Accordingly one of the conditions of the validity of a DMC was not met. If she had wanted to alter the disposition of property on her death, said Jackson, she could have gone to her solicitors and made a new will.

'If the DMC claim is upheld, the effect will be that June's will is largely superseded and the bulk of her estate will pass to the claimant, who is not even named as a beneficiary in the will', commented Jackson. 'This would bypass all of the safeguards provided by the Wills Act and the Law of Property Act.'

He said, therefore that the charities' appeal must succeed on that ground alone – even though this contravened a recent decision in another DMC case, Vallee v Birchwood. He thus declared that Vallee was wrongly decided.

Moreover, Jackson ruled that Mrs Fairbrother could not have made a DMC gift of the house, because she later attempted to make a will that disposed of it.

The appeal court thus reversed Hollander's decision in the High Court and nullified the alleged DMC gift. The charities will now receive much of the legacies they had expected. However, King also made a claim for reasonable financial provision under the 1975 Inheritance (Provision For Family And Dependants) Act, which was allowed. He will accordingly receive GBP75,000 from Mrs Fairbrother's estate (King v The Chiltern Dog Rescue & Anor, 2015 EWCA Civ 581).

Law firm Wilsons acted for two of the charities, Redwings Horse Sanctuary and Chiltern Dog Rescue. 'If the High Court decision had been upheld it would have set a dangerous precedent, undermining the legal sanctity of a properly executed will', commented Charlotte Watts TEP, a partner at Wilsons. 'It could have also potentially opened the floodgates to friends or relatives making spurious claims about what an ill or elderly person may have gifted to them in their last few months, circumventing what they had carefully set down in their will during their lifetime.'

Sources

• BAILII
• Third Sector online