Woodard v Woodard
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE NICHOLLS,SIR JOHN MEGAW |
| Judgment Date | 15 March 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0307-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0235 |
| Date | 15 March 1991 |
[1991] EWCA Civ J0307-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BUXTON COUNTY COURT
(HIS HONOUR JUDGE MORRISON)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Nicholls
Sir John Megaw
91/0235
MR CHRISTOPHER ELLIOT, instructed by Jacqueline Gregory (Stockport, Cheshire), appeared for the Appellant (Plaintiff).
MR JOHN LAMBERT, instructed by Messrs Lyons Wilson & Co. (Manchester), appeared for the Respondent (Defendant).
This is an appeal by the plaintiff in the action, Mrs Mary Woodard, against a decision of His Honour Judge Morrison given in the Buxton County Court as long ago as 28th February 1989. The notice of appeal was given on 18th July 1989. It has not come on until now. It is now about the most sterile appeal I have ever come across.
The plaintiff is the mother of the defendant, Barrie Woodard, who is the respondent to the appeal. The amounts at issue are not very large. Both parties had legal aid in the court below. Both parties have legal aid in this court. Both parties are living entirely on state benefits. The defendant became unemployed some six months ago and has also had to undergo heart surgery. There appears to be no prospect of his being able to meet any judgment that the plaintiff might achieve by this appeal, and any sum for which judgment was recovered would be subject to the Legal Aid Board's charge for the plaintiff's costs in the court below and in this court. Nonetheless, we have to deal with the issues.
The primary issue concerns a motor car which was owned by the plaintiff's late husband, Leonard Woodard, who was the defendant's father. The car was an Austin Metro registration number C139 BVU. Leonard Woodard died of leukaemia on 16th July 1986. The plaintiff, his widow, is the sole beneficiary of his estate and his sole personal representative.
By the action in which the original particulars of claim were served on 14th January 1988, she claimed the proceeds of sale of the car, amounting to £3,900 as a result of the sale of the car shortly after the deceased's death, as an asset of the estate.
The defence put in was that the car had been given inter vivosby an outright gift by the deceased to the defendant a few days before the deceased died, namely on Sunday 13th July 1986. The judge upheld the contention of the defendant that there had been such an outright gift.
In this court, inasmuch as it appeared that it was likely that there had been a donatio mortis causa rather than an outright gift, we gave leave to counsel for the defendant to re-amend the defence to plead donatio mortis causa in the alternative and to serve a respondent's notice to that effect out of time. Mr Elliot, for the plaintiff, who had appeared at the trial in the court below, candidly admitted that at the trial in the court below he had been alive to the possibility of donatio mortis causa being alleged by an amendment. He would not have been embarrassed if it had been raised below or on appeal, and he had at the trial extracted all the evidence relevant to that issue which he could have hoped to achieve on the point.
The general history is that in early 1986, specifically in March, the deceased was admitted to hospital because of his leukaemia. At that time he apparently said to various friends, including a Mr Hayes who gave evidence, "I have given Barrie"—that is to say the defendant—"the car". As the judge pointed out, he had done no such thing, as 48 hours later the deceased came out of hospital and resumed use of the car for himself. It is quite plain that any question at that stage of giving the defendant the car was conditional on the deceased's own death.
I have mentioned Mr Hayes. The judge said he found Mr Hayes a good witness and he specifically accepted that Mr Hayes' evidence had been that the deceased said "I have given Barrie the car". Actually, as recorded in the judge's note, Mr Hayes' evidence was that the deceased said to him in March, 48 hours before the deceased left hospital to go back home, "Harry, I have got something to tell you. Mary has been a good wife to me and I will not be here in six months time, so I have given Barry the car". That appears to be a complete non sequitur, as quoted by the judge in his notes between inverted commas, but we have the finding of the judge that Mr Hayes was told by the deceased "I have given Barrie the car".
Be that as it may, the deceased came out of hospital and went home and, as the judge said, resumed use of the car for himself.
On 12th July 1986, however, he was taken ill again and taken to the Royal Infirmary in Manchester where he remained until his death on the 16th. There was evidence from the defendant's wife that on the 12th, when they were about to go to the hospital, the deceased said to the defendant's wife, Faye Woodard, pointing to the car and at a time when the deceased was in a very distressed condition, "It is Barrie's now for him to keep or to sell. If he wants to keep it mother will have plenty of money to help him to run it". As to that evidence, the judge said that he treated it with some circumspection "as she was clearly trying to support and reinforce her husband's case". In any event, a statement to Mrs Faye Woodard would not have constituted a gift to the defendant at that juncture.
However, the evidence that the judge did accept is the evidence of the defendant himself as to the 13th July, the Sunday. The judge records it thus in his judgment:
"The Defendant says that he took his mother to hospital and that in his mother's presence the Deceased said to him 'You can keep the keys, I won't be driving it any more'. The Plaintiff denied that she heard this conversation but I prefer the evidence of the Defendant on this point. The Defendant says that if his father had recovered and come out of hospital he would have had the car back again."
A bit lower down in his judgment the judge said:
"It is perfectly plain that when he went into hospital on the 12th July he must have known that there was a strong possibility that his hour had come and that there was only a remote possibility that he would be able to drive again. He knew that the Defendant had possession of the car and a set of keys. If it was his intention to ensure that his son was to get this part of his estate what else could he do other than to say 'my son will have the car'. I hold on the facts and in law that the Deceased's intention was completed and the car was given by him to the Defendant in his lifetime."
In my judgment, since it was clearly understood by the son, as had been the case in March, that if his father had recovered and come out of hospital he would have had the car again, the intention must only have been to make a donatio mortis causa and not to make an immediate and binding gift, from the moment of which the car would have been irrevocably the property of the defendant. But viewing it, therefore, as a case of donatio mortis causa, we still have the finding of the judge that the words "You can keep the keys, I won't be driving it any more" were equivalent to and meant "My son will have the car".
It seems to me to be obvious, as the defendant had driven the car to the hospital, taking his mother there, that the deceased must have meant rather more by "You can keep the keys etc." than "Don't leave the keys with me now because you will need to drive back again". I think we should accept that wording, borderline though it may be, as amounting to what the judge said, words intending a gift to the defendant of the car as had been the case in March.
There are three aspects of the requirements for a donatio mortis causa. They have been cited to us from the judgment of Mr Justice Farwell in re Craven's Estate [1937] Ch. 423. It is perhaps more appropriate to take them from the very recent and as yet unreported judgment of Lord Justice Nourse in giving the judgment of this court in the case of Sen v. Headley, which was handed down on 28th February of this year. He says:
"There have been several judicial statements of what, in general terms, is necessary to constitute a donatio mortis causa", and he refers to a number of authorities, including re Cravens Estate. Then he says:
"If the question whether the subject matter is capable of passing by way of donatio mortis causa is put on one side, the three general requirements for such a gift may be stated very much as they are stated in Snell's Equity, 29th ed., 380–383. 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...
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