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Gifts of land

Donatio mortis causa

Application to gifts of land

Vallee v Birchwood
[2013] EWHC 1449 (Ch)

Summary

This case concerned an appeal on the issue of whether the handing over of title deeds and keys four months prior to death fell within the principle of donatio mortis causa. The court held that it did apply in these circumstances.

The doctrine of donatio mortis causa

A donatio mortis causa is a present gift, which remains conditional until the donor dies. Until death the gift is inchoate and can be revoked in the meantime. It gives rise to a constructive trust, which avoids the formal requirements for the transfer of land and the creation of trust of land.

If the donor transfers the legal title to the donee the gift will become unconditional on the donor’s death. If it is revoked before death the donee holds on trust for the donor.

If the legal title has not been transferred, and the gift has not been revoked, the donor’s personal representatives will hold the property on trust for the donee and can be compelled to transfer it to him.

Facts

D was the natural daughter of F. She was adopted by another family and so did not benefit on his intestacy. Despite the adoption she kept in contact with her father. Unbeknown to her, her father had living relatives in Ukraine who stood to benefit under the intestacy rules. The defendant was an “heir hunter” who tracked down the Ukrainian relatives. He obtained a power of attorney from them and was appointed as administrator of F’s estate. The estate comprised only one major asset, which was F’s property. D brought proceedings on the basis that the property had been given to her under the doctrine of donatio mortis causa and therefore did not form part of the estate.

The gift occurred on a visit by D to F during an illness of F. She said to him she would be returning again in a few months and F said he was unlikely to live that long. He handed her the deeds to his property and the key. He also gave her his war medals and a photograph album. F died prior to her next visit.

First instance

The circuit judge held that the gift was made in contemplation of death and the property had been transferred to D under the doctrine of donatio mortis causa. A appealed to the High court.

Decision on appeal

The High Court (Jonathan Gaunt QC) dismissed the appeal and found for D. The court reviewed the doctrine of donatio mortis causa and applied it to the facts.

Delivery of dominion

The principle of delivery of dominion was explained in the case of Birch v Treasury Solicitor [1951] Ch 298 where it was held that there must be delivery of the indicia of title as distinct from mere evidence of title. There had to be some act of physical transfer. In the case of land, the delivery to the donee of exclusive physical possession is not a crucial element and there is no requirement that the donor part with possession. The principles of the doctrine were the same for land as for other gifts. Continued enjoyment of the property by the donor was not incompatible with his intention to make a gift effective on his death. In Sen v Headley [1991] Ch 425 the Court of Appeal held that the indicia of title were transferred where the donor handed the donee the keys to the house and a key to a box containing the title deeds to the house accompanied by the words that the house was hers.

Application to facts

Here, A had argued that the time gap of four months between the gift and the death was too long to make it in contemplation of death and that no authority contained a time of more than a few days. The court followed the case of Re Craven’s Estate (No 1) [1937] Ch 423 in adopting interpretation of "in contemplation of death" as meaning "within the near future". The court held that the law only required the gift to be made in contemplation and not necessarily in the expectation of death and therefore there was no requirement to prove that death was impending. It was the motivation of the gift rather than the lapse of time between the gift and death than was relevant.

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