Kenneth Paul King v James Dubrey and Others

JurisdictionEngland & Wales
JudgeMr Charles Hollander
Judgment Date01 July 2014
Neutral Citation[2014] EWHC 2083 (Ch)
Docket NumberClaim No: HC12E03256
CourtChancery Division
Date01 July 2014

[2014] EWHC 2083 (Ch)




Mr Charles Hollander QC

(Sitting as a Deputy Judge)

Claim No: HC12E03256

Kenneth Paul King
(1) James Dubrey
(2) Joan Dubery
(3) Trudy Manning
(4) June Davies
(5) Margaret Von Hoensbroech
(6) Elizabeth Drorer
(7) Joan Copeman
(8) Jennifer Crosby
(9) Ivy Banks
(10) Elspeth Wotherspoon
(11) Ronald Archer
(12) Sally Archer
(13) Dorothy Cooper
(14) Mrs Woodstock
(15) The Chiltern Dog Rescue
(16) The Blue Cross Animal Shelter
(17) Redwings Horse Sanctuary
(18) The Donkey Sanctuary
(19) The International Fund for Animal Welfare
(20) The Pdsa
(21) The World Society for the Protection of Animals

Mark Mullen (instructed by Wilsons Solicitors LLP) for the 15–21st Defendants

Edward Rowntree (instructed by Berry & Berry LLP) for the Claimant

The other defendants did not appear

Hearing date: 12–14 May 2014

Mr Charles Hollander QC:


The 15 th–21 st Defendants ('the Charities') are the residuary beneficiaries of the will of the late June Margaret Fairbrother ("June"), dated 20 th March 1998 ('the Will'), which also leaves a total of £19,000 in legacies to friends and family. June died on 10 th April 2011 and the Will was admitted to probate on 28 th February 2012.


At the date of her death, June lived at 12 Kingscroft Road, Harpenden, Hertfordshire AL5 1EJ ('the Property') with her nephew Mr Kenneth King, the Claimant. The Property is the principal asset of the estate and has recently been valued at £350,000.


Mr King's primary claim is that June made a donatio mortis causa ('DMC') of the Property to him between 4–6 months before her death by handing him the deeds to the Property saying 'This will be yours when I go' or similar words


If Mr King is unsuccessful in establishing a DMC, his alternative claim is brought under the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act"). Mr King says that he moved in with the deceased in June 2007 in order to care for her and that he lived rent free at the Property thereafter. He says that he gave up a bedroom and lounge he was renting from a friend in Kent at a cost of £600 per month. He claims he was dependent on his aunt for just under four years until her death.


The information which I was given as to the other Defendants, who did not appear at the trial, was as follows. The 1 st and 2 nd Defendants are two of the executors of the Will and have filed acknowledgments of service stating that they do not intend to contest the claim. The 3 rd to 14 th Defendants are pecuniary legatees under the Will. The 6 th Defendant has filed an acknowledgment stating that she does not intend to contest the claim, but does not consent to an order in the terms requested by Mr King. The 7 th Defendant has indicated that she intends to contest the claim but this appears to be limited to asking that any relief does not affect her legacy and nothing further has been heard from her. The 5 th, 10 th, 11 th and 12 th Defendants have filed acknowledgments of service stating that they do not intend to contest the claim. The contest is thus between Mr King and the Charities.



In the course of the trial, I had written or oral evidence from Mr Simeon Jenkin (Civil Evidence Act "CEA"), Ms Winifred Tilley, Mr Jeremy Gray, Mr David King, Ms Trudy Manning (CEA), Ms Kay Bringmann, Ms Pauline King (CEA) and Ms Barbara Constable. Ms Constable, who is an officer of St Alban's City and District Council, was able to assist in relation to Mr King's application for benefits and documents relating thereto. The other witnesses who gave oral evidence had limited knowledge of the matters relevant to the case and, although giving honest evidence, were of limited assistance. It was the evidence of Mr King which was pivotal to this case.

DMC: the law


DMC takes effect as an historic and anomalous exception to the requirements of the Wills Acts. Its continued existence as a legal principle was confirmed by the Court of Appeal in Sen v. Headley [1991] Ch 425, which is the leading modern case on DMC. DMC involves a present gift which takes effect in the future and remains conditional until the donor dies: see generally Williams Mortimer and Sunnucks, Executors, Administrators and Probate, Ch 42. Until that point it may be revoked by the donor, but on death the gift is absolute. In In re Beaumont [1902] 1 Ch. 892, 893, Buckley J described a DMC as:

"a singular form of gift. It may be said to be of an amphibious nature being a gift which is neither entirely inter vivos nor testamentary. It is an act inter vivos by which the donee is to have the absolute title to the subject of the gift not at once but if the donor dies. If the donor dies the tide becomes absolute not under but as against his executor.

In order to make the gift valid it must be made so as to take complete effect on the donor's death".


The court must also distinguish between a genuine DMC, which meets the requirements set out in case law, and an attempt to make a testamentary gift otherwise than in accordance with the Wills Act 1837. In Birch v Treasury Solicitor [1951] Ch. 298, 307 Lord Evershed MR stated:

"the courts will examine any case of alleged donatio mortis causa and reject it if in truth what is alleged as a donatio is an attempt to make a nuncupative will, or a will in other respects not complying with the forms required by the Wills Act."


In Cosnahan v. Grice (1862) 15 Moo. P.C. 215 the Privy Council emphasised the burden of proof in such cases:

'Cases of this kind demand the strictest scrutiny. So many opportunities, and such strong temptations, present themselves to unscrupulous persons to pretend these deathbed donations, that there is always danger of having an entirely fabricated case set up. And, without any imputation a fraudulent contrivance, it is so easy to mistake the meaning of a person languishing in a mortal illness, and, by a slight change of words, to convert their expressions of intended benefit into an actual gift of property, that no case of this description ought to prevail, unless it is supported by evidence of the clearest and most unequivocal character.'


In In Re Craven's Estate [1937] Ch 423, 426, Farwell J set out the conditions essential to a valid DMC as follows:

"The conditions which are essential to a donatio mortis causa are, firstly, a clear intention to give, but to give only if the donor dies, whereas if the donor does not die then the gift is not to take effect and the donor is to have back the subject-matter of the gift. Secondly, the gift must be made in contemplation of death, by which is meant not the possibility of death at some time or other, but death within the near future, what may be called death for some reason believed to be impending. Thirdly, the donor must part with dominion over the subject-matter of the donatio"


This was echoed by the Court of Appeal in Sen v. Headley [1991] Ch 425. Nourse LJ set out the requirements of a valid DMC at 431:

"First, the gift must be made in contemplation, although not necessarily in expectation, of impending death. Secondly, the gift must be made upon the condition that it is to be absolute and perfected only on the donor's death, being revocable until that event occurs and ineffective if it does not. Thirdly, there must be a delivery of the subject matter of the gift, or the essential indicia of title thereto, which amounts to a parting with dominion and not mere physical possession over the subject matter of the gift"


It is not enough for this purpose merely to contemplate death 'at some time or other'. What is essential is the contemplation of 'death within the near future, what may be called death for some reason believed to be impending.' ( In Re Craven's Estate [1937] Ch. 423, 426). Most of the reported cases concern deaths which took place shortly after the gift had been effected when the donor was gravely ill. For example: (1) Sen v Headley [1991] Ch 425: death 3 days after the gift (2) In Re Craven's Estate [1937] Ch. 423: death 5 days after the gift; and (3) Birch v Treasury Solicitor [1951] Ch. 298: death 4 days after gift was repeated.


However, in Vallee v Birchwood [2013] EWHC 1449 (Ch), the testator had effected the alleged gift on 4 th August 2009 when he was visited by his daughter, who lived abroad. She found him unwell and coughing badly. He stated that he did not expect to live much longer and that he might not be alive by Christmas when his daughter told him she expected to visit again. He gave her the deeds, a set of keys and some personal effects, which she took away. He died at the start of December. The deputy judge on appeal affirmed the decision of the trial judge that the contemplation of death within 5 months — by Christmas that year — was contemplation of impending death. He further made clear that the continued enjoyment of the property during the life of the donor was not incompatible with an intention to make a gift which was effective on the donor's death.


It is apparent from Sen v Headley that unregistered land can be the subject of a DMC. What is required in the case of property which is not capable of physical delivery is for the donor to part with dominion over the essential 'indicia of title': see Williams at para 42–17. Birch v Treasury Solicitor [1951] Ch 298 concerned the handing over of Post Office and bank deposit books. This was sufficient to effect a DMC. Lord Evershed MR, giving the judgment of the Court of Appeal, reiterated that symbolic delivery of tokens was not enough, there must be transfer of the subject matter of the gift or of 'something amounting to that'. He went on to define the 'indicia' in this way:

"…the indicia of title, as distinct from mere evidence of title, the document or thing...

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