While a DMC of land has been recognised in the case of Sen v Headley and since followed, the case law has dealt with unregistered land and actual or constructive control over title deeds. The transfer of registered land under a DMC, therefore, poses problems. Clearly, control of the register which exists in a virtual world of electronic data cannot be transferred. Roberts and Bansal both rule out a DMC of registered land, but to date, the courts have not been asked to address the issue.
The Land Registration Act provides that an official copy of the register is admissible in evidence to the same extent as the original. What weight should currently be attached to this in the circumstances of a DMC? Lord Justice Patel in King stated:.
The replacement of hard-copy indicia of title to various forms of property—including chose in action—has been extensively explored by Nicolas Roberts and clearly presents challenges for the continued application of DMCs in a number of circumstances in normal times.
Of course, it might be the case that those who are most vulnerable to the virus especially the elderly may still be living in unregistered property and have intangible property in the form of savings books, heirlooms, etc. Here, then a DMC would still be possible. The DMC is often regarded as being sui generis , something of anathema, sitting awkwardly alongside other legal institutions.
It is clear that a DMC does not take effect until death, yet it operates outside any will and indeed would be interpreted as removing property from the estate of the deceased during his or her lifetime.
Clearly, the donor does not forfeit all rights to the property as should the donor not die the DMC does not take effect. Is this therefore a form of trust? In other words, either the donor holds the property on trust for the donee until death—and indeed may continue to enjoy the property, as in King v Dubrey [] EWCA Civ , or does the donee hold the property on a resulting trust for the donor should the donor not die?
Clearly, this cannot be an express trust because once created such a trust would be unrevokable, 20 thereby defeating one of the distinguishing features of a DMC. While any such express trust would in any case fail in respect of land—whether registered or unregistered, leasehold or freehold, unless there was compliance with the formalities of the Law of Property Act , it could be upheld in respect of chattels.
However, the intention behind the DMC and an express trust is fundamentally different, and while a person facing death may certainly create a trust, this is an entirely different legal creature. If a DMC is based alternatively on a conditional gift, this difficulty might be avoided; an approach preferred by the judge in the Singapore case:.
The conditions required for a valid donatio mortis causa are stringent, and there is no fear that adopting RCT analysis to explain part of the doctrine would result in the widespread uncertainty feared by English judges.
Unfortunately, the reluctance of English law to embrace the remedial constructive trusts leaves the DMC as a sui generis legal concept falling somewhere not only between life and death but also gifts and trusts. It remains valid for certain forms of personal property and may apply to land in certain circumstances. Much therefore depends on what can be done now. It does not matter whether the two are transferred at the same time or the intention for the gift made on one occasion and the physical transfer on another.
In the case of Cain v Moon [] , a daughter, the donor, delivered a deposit note to her mother, the donee, for safe custody. The court held this to be a valid donatio mortis causa as it was not necessary for the mother to hand back the bank note and for the daughter to re-deliver it when she expressed her intention to make the donatio mortis causa.
In the case of Reddel v Dobree [], the alleged Donor, who was in declining health delivered a locked cash box to the alleged Donee and told her that the box contained money for her, but that he wanted the box from her every 3 months whilst he lived, and that, at his death, the Donee was to go to his son for the key. The court held that there was no donatio mortis causa as the donor intended to retain dominion over the contents of the box during his lifetime, he had control of the key and had reserved to himself, in advance, the right to deal with the contents.
Similarly, the gift can be delivered to an agent of the Donee. In the case of Re Lillingston [] the Donor handed over a packet of jewellery and the key to a box which contained the key to a safety deposit box, which contained the key to a further safety deposit box.
The Donor told the Donee to find the jewellery in various locations upon her death and the key was hers to keep. This was a valid DMC and providing that the gift was clear, the number of boxes were irrelevant. The Court of Appeal case of Sen v Headley [], confirmed that land can be the subject matter of a valid donatio mortis causa.
In this case, the Claimant and donee of this case had visited the Deceased and donor in hospital and the Deceased told her that his house and its contents were hers. The Deceased went on to state that the deeds to the house was in a steel box to which the Claimant had the key.
Unbeknown to the Claimant, the Deceased had slipped the key into her handbag. The Court of Appeal confirmed that this was a valid donatio mortis causa. There has been some debate as to whether shares can form the subject matter of a DMC, but case law suggests that shares in a public company can be so conveyed, provided an executed share transfer form is delivered to the donee. Providing it is not revoked during lifetime, upon death the DMC will become complete and valid. In conclusion, although it may be possible to make a DMC, it is a risky strategy and should only be considered as a last resort.
It may be that we see an increase in people seeking to rely on this old doctrine as a result of the current pandemic, but courts are likely to adopt a cautious approach due to the clear risk of fraud and abuse. If you are considering how your assets should pass on your death, please contact us and we can discuss the options available to you, including making a Will.
If you are a personal representative dealing with an estate in which the question has arisen, you should seek advice to determine whether the above requirements for a valid DMC have been satisfied. This article is from the spring issue of Private Lives , our newsletter covering the key legal and tax issues that individuals face. To download the latest issue, please visit the newsletter section of our website. To keep up-to-date with the latest news, legal updates and seminar information, please register and select the areas that are of interest to you.
Contact us Stay up to date. Contemplation of death This requires something more than a recognition of the universal truth that all of us will, ultimately, shuffle off this mortal coil. Contingent on death For a valid DMC, the donor must have intended the gift to take effect only on his or her death. In cases where early death is inevitable the law relaxes the requirement that D should specifically require the property back if he survives.
However, subject to that qualification, the court should treat proper compliance with the second requirement as an essential element.
The doctrine is only applicable if the three requirements set out above are met. Because the doctrine is open to abuse, courts should require strict proof of compliance with those requirements. The courts should not permit any further expansion of the doctrine.
Applying these principles it was clear that the requirements were not satisfied. The deceased was not suffering from a fatal illness, nor was she about to undergo a dangerous operation or to undertake a dangerous journey.
If she was dissatisfied with her existing will she could have gone to solicitors and made a new will. Browse over 3, law jobs. Get jobs by email. Site powered by Webvision Cloud.
Skip to main content Skip to navigation. Law reports. He said there are three requirements to constitute a valid donatio mortis causa: 1 The donor D contemplates his impending death. Topics Law Reports. Related articles.
0コメント