Synopsis: A group of charities have asserted their right to a share of property left to them by an elderly woman and defeated the claim of the testatrix’s nephew to whom she had purportedly gifted the house in the interim period.

Date posted: Monday, June 15, 2015

A group of animal charities have succeeded in their appeal against the High Court decision in the case of King v Dubery and others (2014). The facts of the case were as follows:

Mrs Fairbrother executed a will in 1998 leaving modest legacies to various members of her family and naming several animal charities as the residuary beneficiaries of her estate.

Some nine years later, Mrs Fairbrother had become frail and her nephew Kenneth King moved in to care for her in return for free board and lodging. King lived with the testatrix until the time of her death in 2011 and claimed that Mrs Fairbrother had promised him the house would be his after her death, even handing him the deeds to the property.

However, no actual transfer of title took place and consequently the charitable beneficiaries of the 1998 will expected to receive their legacies following Mrs Fairbrother’s death. King, who was still living at the property, 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 – thereby overriding the terms of the will.

The High Court, taking account of the physical evidence presented by King (which included a signed note from the testatrix, witnessed by one friend, stating that in the event of her death she left her house and her property to her nephew ‘in the hope that he will care for my animals until their death’ as well as an unwitnessed standard form will on the same terms) found in his favour.

The charities accordingly appealed, submitting that Mrs Fairbrother did not have capacity to make the donatio mortis causa; or if she did, then she had revoked it by her subsequent (though ineffective) will-making.

The Court of Appeal considered the criteria for a valid donatio mortis causa and determined that these criteria had not been met. In particular, Mrs Fairbrother, while elderly and frail was not suffering from any specific illness and so could not have been contemplating her impending death when she had the most crucial conversation with King. The appeal judges also took a completely different view of the physical evidence of Mrs Fairbrother’s intentions as presented by King to the High Court, ruling that she could not have made a gift of the house at the alleged time, because she later attempted to make a will that disposed of it.

The appeal court accordingly reversed the High Court decision, nullifying the donatio mortis causa gift, although King did later succeed in his claim for reasonable financial provision under the 1975 Inheritance (Provision For Family And Dependants) Act and will consequently receive £75,000 from his aunt’s estate (King v The Chiltern Dog Rescue & Anor, 2015 EWCA Civ 5).


A donatio mortis causa is a lifetime gift which is conditional on death. There are three main requirements that must be satisfied for a valid donatio mortis causa to be made:

• The gift must be in contemplation of death (for example, where the testator is suffering from a serious illness or is about to have a risky operation);

• The gift must be conditional on death (that is, it will not take effect if the donor recovers from the contemplated cause of death); and

• The donor must part with dominion of the property before death (that is, the subject matter of the gift or the means of obtaining it must be handed over to the done)

In King, the Court of Appeal questioned the usefulness of the doctrine of donatio mortis causa in modern times stating that it ‘paves the way for all of the abuses which the Wills Act and the Law of Property Act are intended to prevent’.

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