An inheritance dispute decided in the Court of Appeal on 9^th June means that 7 animal welfare charities will receive around £300,000 – money that, just a year ago, was awarded to the deceased’s nephew.

The deceased, June Fairbrother, was a retired police officer.  She was an animal lover who made a will in 1998 leaving £20,000 to family and friends and the rest of her estate to animal welfare charities including Redwings Horse Sanctuary and Chilterns Dog Rescue Society.  She had also attempted to make several wills in the months before she died in which she had indicated that she wanted to leave her house to her nephew Kenneth King.  When she died in 2011 her estate consisted primarily of a property worth £350,000.

Mrs Fairbrother lived at a property in Harpenden with Mr King for a period of time before her death and after she died he made a claim against her estate on the basis that he said that 4 – 6 months before she died she gave him the Deeds to the property and said “This will be yours when I go”.

No one witnessed the conversation and the only evidence in support of the claim was that provided by Mr King himself.  His claim was brought under the little known legal doctrine of Donatio Mortis Causa (DMC), which relates to deathbed gifts.

At a hearing at the High Court in 2014 the Judge found in favour of Mr King and said that the conversation amounted to a valid DMC.

Redwings Horse Sanctuary and Chilterns Dog Rescue, two of the charities that were affected by this decision, appealed.  The charities argued that Mr King – who had twice been made bankrupt and had served time in prison for acting as a company director whilst disqualified – was unreliable.  They said that he had failed to make out his case about the validity of the deathbed gift.  His story was “too convenient by half” and should not be accepted unless independently corroborated.

It was common knowledge that Mrs Fairbrother adored animals and that she intended to leave her house to animal charities.  This is what she did in her 1998 will, but in the later documents (which were made with Mr King’s assistance) she specified that her house should pass to Mr King in the hope that he would care for her pet dogs.  In fact, after she died, Mr King did not follow her wishes but sent the dogs to a dog’s home.

At the Court of Appeal on the 9^th June 2015 it was held that the law of DMC required much more evidence than was available in this case and that even if Mr King was telling the truth, a DMC was not established.  The argument can only be successful if all of the following conditions apply:-

• The donor (the person making the gift) must be contemplating death in the near future for a specific reason.
• The gift must be made on the condition that the person making it dies. If he makes the gift and then recovers, the gift is cancelled.
• It must be partly given away, for example by handing over a key to a jewellery box, where the gift is the jewellery in the box, or by handing over the Title Deeds to a house.

Lord Justice Jackson said “In my view, it cannot be said that June was contemplating her impending death at the relevant time.  She was not suffering from a fatal illness.  Nor was she about to undergo a dangerous operation or to undertake a dangerous journey … if the DMC claim is upheld, the effect will be that June’s will is largely superseded and the bulk of her estate will pass to the Claimant, who is not even named as a beneficiary in the Will”.

Sarah Young, specialist in contentious probate at Ridley & Hall Solicitors commenting on the case said: –

“I think that this is a good decision from the Court of Appeal; the 2014 judgment was a troubling decision in many ways because of the lack of any independent evidence.  Courts should, quite properly, be very careful about overturning wills without compelling evidence”.

She added:

“The circumstances are unusual as DMC is not a cause of action that arises very often – but had the decision not been overturned, one could imagine (perhaps cynically) that it might have opened the proverbial floodgates to some fairly flimsy cases.  Mr King does not walk away empty handed – he will receive £75,000.00 as the Court of Appeal considered that he had a valid claim under the Inheritance (Provision for Family and Dependants) Act 1975. The moral of the story is that if you want to change the provisions of your will, you should simply make a new will”.

Sarah Young is a Partner with Ridley and Hall solicitors. She specialises in will disputes and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah on 01484 538421 or mobile 07860 165850.

Ridley & Hall have an expert Private Client Team who can offer specialist legal advice on all aspects of wills and estate administration.

Jill Waddington is a solicitor and head of Ridley & Hall’s Wills & Probate department. She has experience in all aspects of private client work and specialises in Wills, Estates and tax planning, trusts, powers of attorney and Court of Protection work. Jill is a fully qualified member of Solicitors for the Elderly and a full member of the Private Client Section of the Law Society.

For further information pleased contact Jill on 01484 538421.