Donatio Mortis Causa ' Davey v Bailey

Published date31 August 2021
Subject MatterLitigation, Mediation & Arbitration, Family and Matrimonial, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
Law FirmGatehouse Chambers
AuthorMr Cameron Stocks

On 26 February 2021, His Honour Judge Jarman QC, sitting as a High Court Judge, handed down judgment in the decision of Davey & Anor v Bailey & Ors [2021] EWHC 445 (Ch) which concerned alleged deathbed gifts made by an elderly couple.

The Decision

Alan and Margaret Bailey both died at the age of 71 within a few months of one another in 2019. They had no children and each left a will dated 28 May 2009 which appointed the other as the sole executor and beneficiary.

Mrs Bailey passed away first and therefore, upon Mr Bailey's death, his estate passed to his next of kin under the rules of intestacy namely his brother and the children of his sister who predeceased him. Combined with his wife's assets, Mr Bailey's net estate was valued in the region '1.1million.

The Claimants were Mrs Bailey's sister and brother who claimed that Mr and Mrs Bailey made three substantial gifts to them in contemplation of their respective deaths, namely two gifts of cash and a further gift by Mr Bailey of the house which he had jointly owned with his wife.

As to the first two alleged gifts, it was said on behalf of the Claimants that these were evidenced by a checklist provided to Mrs Bailey by Macmillan upon leaving hospital for the last time which expressed an intention for both sides of the family to benefit substantially from the couple's estate. It was argued that the gift was made by Mrs Bailey jointly for herself and as agent of her husband in contemplation of her impending death from cancer and that delivery was effected by instructing her sister to complete the checklist in the way that she did.

As to the third alleged gift of the house, it was said that Mr Bailey had allowed one of the claimants to take a metal box file which contained the pre-registration deeds and office copy entries for the property and told her that he and Mrs Bailey wanted her to have the property.

In assessing the claims made, the Judge referred to the lead judgment in the decision of King v Dubrey [2016] Ch 221 and the three requirements to constitute a valid DMC, namely: (i) the deceased contemplates his impending death (ii) the deceased makes a gift which will only take effect if and when his contemplated death occurs. Until then the deceased has the right to revoke the gift; and (iii) the deceased delivers dominion over the subject matter of the gift to the promisee. The Judge also emphasised that courts must not allow the principle of DMCs to be used as a device in order to validate...

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