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Court of Appeal overturns prominent ‘deathbed gift’ ruling

The deceased had adequate opportunity and capacity to change her will

9 June 2015

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The Court of Appeal has overturned the High Court ruling in the widely cited donatio mortis causa case (deathbed gift) of King v Dubery and others, which found in favour of the claimant,  Kenneth Paul King.

The doctrine of a donatio mortis causa allows gifts to be made verbally (without the need to amendment an existing will or create a new one) when someone is 'in contemplation' of their death.

In this case, the claimant said that the gift was made some four months before death.

The Court of Appeal has ruled that Mrs Fairbrother had no reason to expect to die soon and had adequate capacity and opportunity to change her will if she really did wish to do so.

Donatio mortis causa claims are notoriously difficult to prove or disprove, as they leave very little trace of their existence - they often hinge on accounts of conversations.

Charlotte Watts, a partner at law firm Wilsons, believes that the Court of Appeal's decision is the correct one, as it will protect 'the legal sanctity of a will'.

She commented: 'The courts do not want to encourage potential beneficiaries to concoct unfounded claims to an estate. Nor do they want to discourage people from making wills and to instead divide up their estates through informal promises which could easily be contradictory and difficult to unravel, or the result of inappropriate pressure.

'If the Court of Appeal had decided not to overturn the High Court decision, this is exactly the kind of scenario we could have seen, a scenario that would have undermined the legal sanctity of a will.'

The original case (King v Dubrey & Ors [2014] EWHC 2083 (Ch)) concerned the estate of King's aunt, June Margaret Fairbrother, who had executed a will in 1998, leaving her estate (which included her property) to over 20 animal charities.

Following her death, King made a donatio mortis causa claim against her estate, where he alleged that she verbally made a gift of her property to him, and handed the title deeds to him.

Charles Hollander QC found in favour of King's claim to the property.

Binyamin Ali is assistant editor of Private Client Adviser

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