Theodossiades v Smith and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Patten,Lord Justice Sales |
| Judgment Date | 09 June 2015 |
| Neutral Citation | [2015] EWCA Civ 581 |
| Docket Number | Case No: A3/2014/2704 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 June 2015 |
[2015] EWCA Civ 581
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, CHANCERY DIVISION
MR HOLLANDER QC, SITTING AS A DEPUTY HIGH COURT JUDGE
HC12E03256
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Patten
and
Lord Justice Sales
Case No: A3/2014/2704
Ms Penelope Reed QC and Mr Mark Mullen (instructed by Wilsons Solicitors LLP) for the Defendants/Appellant
Mr Edward Rowntree (instructed by Berry & Berry LLP) for the Claimant/Respondent
Hearing date: Tuesday 28 th April 2015
This judgment is in eight parts, namely:
| Part 1. Introduction | Paragraphs 2 to 7 |
| Part 2. The facts | Paragraphs 8 to 20 |
| Part 3. The present proceedings | Paragraphs 21 to 27 |
| Part 4. The appeal to the Court of Appeal | Paragraphs 28 to 33 |
| Part 5. The law on donatio mortis causa | Paragraphs 34 to 61 |
| Part 6. Has a donatio mortis causa been established? | Paragraphs 62 to 76 |
| Part 7. The claimant's claim for reasonable financial provision | Paragraphs 77 to 82 |
| Part 8. Executive summary and conclusion | Paragraphs 83 to 88 |
This is an appeal by charities who are entitled to inherit under a will against a decision that (a) the deceased transferred her house to her nephew by a donatio mortis causa, alternatively (b) the nephew is entitled to recover £75,000 against the estate as reasonable financial provision. The principal issue in the appeal is whether the deceased's words and conduct a few months before her death gave rise to a donatio mortis causa. This in turn will involve examining the scope of that doctrine in modern law.
In this judgment I shall refer to donatio mortis causa as "DMC". I shall refer to the Wills Act 1837 as "the Wills Act". I shall refer to the Law of Property Act 1925 (as amended) as "the Law of Property Act". I shall refer to the Inheritance (Provision for Family and Dependants) Act 1975 as "the 1975 Act".
Section 9 of the Wills Act provides:
" Signing and attestation of wills
No will shall be valid unless —
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either —
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary."
Section 52 (1) of the Law of Property Act provides:
" Conveyances to be by deed.
(1) All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed."
Section 1 (1) of the 1975 Act provides:
" Application for financial provision from deceased's estate.
(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons:—
….
(e) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant."
Subsequent provisions of the 1975 Act enable the court to award reasonable financial provision out of the deceased's estate to a claimant falling within section 1 (1).
Having set out the relevant statutory provisions, I must now turn to the facts.
The two central characters in this story are June Margaret Fairbrother ("June"), who is now deceased, and June's nephew, Kenneth Paul King. Mr King is claimant in the present proceedings and respondent before this court. I shall refer to him as the claimant.
June was born on 5 th June 192She served as a police officer in the Hertfordshire Constabulary throughout her working life. After retiring June lived at 12 Kingcroft Road, Harpenden, of which she was the freehold owner. That property is now worth about £350,000. June was a single woman, having divorced many years earlier. She had no children. June was extremely fond of animals. She kept a number of cats and dogs. She also helped several animal charities with their work. It was common knowledge within the family that she intended to leave her property to the animal charities which she supported.
On 20 th March 1998 June made a will. By that will she left a number of modest legacies to friends and relatives. She left the rest of her estate, which was the bulk of her property, to the following seven charities:
1) The Chiltern Dog Rescue
2) The Blue Cross Animal Shelter
3) Redwings Horse Sanctuary
4) The Donkey Sanctuary
5) The International Fund for Animal Welfare
6) The PDSA
7) The World Society for the Protection of Animals
I shall refer to those seven charities collectively as "the charities".
I now turn to the claimant. He followed a somewhat different path in life from his aunt. He worked in the construction industry, but became bankrupt in 1990. In 1996 he was disqualified from acting as a company director for eight years. In 2000 the claimant was made bankrupt again. Undeterred the claimant proceeded to act as a company director, while he was disqualified from doing so. In August 2005 the claimant was convicted of that offence and sentenced to twelve months imprisonment.
The claimant was released from prison in December 2005. In October 2006 the claimant separated from his wife and went to stay at the home of his friend, Paul Whitehead, in Tunbridge Wells. The claimant worked in the construction industry with Mr Whitehead and paid £600 per month for his accommodation.
In the summer of 2007 the claimant went to live with his aunt. June was becoming increasingly frail. The arrangement was that the claimant would care for June as necessary. In return June provided a home for the claimant to live in and subsistence. The claimant gradually wound down his business with Mr Whitehead. That process took about a year.
According to the claimant on a number of occasions June said that the house would be his after her death. On 19 th November 2010 June wrote out and signed a short 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".
At about this time June collected the title deeds to her property from the bank or the solicitors' office where they were stored. She then had a conversation with the claimant, which the claimant recounts in paragraphs 29 to 31 of his witness statement. The trial judge has held that those three paragraphs are an accurate account of the events. So I will set them out in full:
"29. On another occasion, about four to six months before she died, June presented me with the deeds to the Property and again said to me that "this will be yours when I go". As the property is unregistered, the documentation included an epitome of title from 1900 to date. From her tone of voice and her seriousness when she gave me the deeds, I had no doubt in my mind at the time, that she thought that she was giving me what she thought I would need when she died, so that the Property would belong to me. She was a smart woman and understood that the deeds represented ownership of the house.
30. At that time, June's health was deteriorating. She had not yet become bed-ridden, although this did happen shortly afterwards.
31. June was not prone to using phrases of the sort, "when I go," as she was not the sort of person to spend time morbidly considering the end of her life. Her use of the words and the way she looked at me at that time made clear to me that she knew her health was failing and that her death was approaching. I took the bundle of documents from her and wrapped them in a plastic bag and put them in my wardrobe. Prior to this incident, I had not seen the deeds before."
On the 4 th February 2011 June wrote a document which reads as follows:
"In the event of my death I leave my house Garden Car etc and everything to Kenneth Paul King same address in the hope he will care for my animals as long as reasonable."
June's friend, Mrs Teri Walker, signed this document as a witness.
On 24 th March 2011 the claimant prepared a so-called "will" for June using a form of words which he had downloaded from the internet. June duly signed the document, but no-one witnessed her signature. This document reads as follows:
"1. I REVOKE all former Wills and other testamentary dispositions made by me and declare this to be my law Will.
2. I WISH my body to be cremated and my ashes to be scattered and I WISH my name to be inscribed on the rosebush plaque commemorating my late mother MARGARET RACHEL KING and father HENRY KING.
3. I APPOINT my nephew KENNETH PAUL KING of 12 Kingcroft Road, Harpenden, Hertfordshire, AL5 1EU to be my sole executor.
4. SUBJECT to the payment of my debts funeral and testamentary expenses and my legacies given by this will or an codicil hereto I GIVE to my nephew KENNETH PAUL KING my property of 12 Kingcroft Road, Harpenden and my entire estate absolutely.
5. I REQUEST AND HOPE that he care for my dogs Tinker, Bonnie and Patch and my cats Blackie and Katie until their death."
On 10 th April 2011 June died. The claimant did not continue looking after...
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