Davey v Bailey [2021] EWHC 445 (Ch) is a significant judgment on the law of deathbed gifts (donationes mortis causa; “DMCs”). A DMC is one of the few ways in which a person can make a valid transfer of property on death without complying with the formalities required by section 9 of the Wills Act 1837.

Richard Fowler represented the claimants at trial, instructed by CCW Law Solicitors Ltd.

The case concerned a prosperous married couple, Mr and Mrs Bailey. They were childless and had made wills which left their entire estates to each other, but made no provision as to what would happen to the estate of the second of them to die. As a result, when they died within a few weeks of each other, the entirety of their combined estates went to Mr Bailey’s family, while Mrs Bailey’s family received nothing.

Before their deaths, both Mrs and Mr Bailey had stated that they wanted Mrs Bailey’s family to receive various valuable assets from their estates, and they had prepared with Mrs Bailey’s sister an unsigned document which recorded their wishes. After his wife’s death, Mr Bailey had also given a metal box containing documents relating to their marital home to his wife’s sister. Mrs Bailey’s family thus claimed that they were the beneficiaries of substantial DMCs made by each of the deceased couple.

Giving judgment in the Chancery Division of the High Court in Cardiff, His Honour Judge Jarman QC held that the law in relation to DMCs remained as set out by the Court of Appeal in King v The Chiltern Dog Rescue [2015] EWCA Civ 581, [2016] Ch 221. To be effective as a DMC, a gift must meet three tests: (1) the donor must make the gift in contemplation of impending death, which the donor must expect in the near future for a specific reason; (2) the gift must take effect only if and when the donor’s death occurs (and is revocable until then); and (3) the donor must deliver “dominion” of the gift to the donee.

In Davey, the judge’s conclusion was in essence that the couple’s remarks to Mrs Bailey’s relatives were really statements of testamentary intention, not gifts themselves. In addition, while Mrs Bailey was contemplating her death in the near future from a specified cause (cancer), Mr Bailey was not. Their intention was that, after Mrs Bailey’s death, Mr Bailey would make a new will to give effect to their promises. Mr Bailey’s own death meant that this never happened. The promises were thus ineffective as DMCs.

The judge addressed a number of other points of interest. He accepted that the test for contemplation of death was subjective (the question is whether the donor believes that s/he will die in the near future). He also noted that it remained good law that unregistered land could be the subject of a valid DMC, effected by delivery of deeds to the donee. On the vexed issue of whether it was possible to make a valid DMC of registered land, and if so, how, the judge considered authorities from Singapore and Canada, together with academic commentary, but concluded that it was not necessary to determine the point. This “interesting question”, as the judge described it, thus remains open.

The DMC is an important tool by which donors may make valid gifts at the very end of their lives without complying with the statutory requirements for executing a will. Nevertheless, Davey v Bailey confirms that the courts will apply the tests for a valid DMC strictly.

The full judgment appears on Bailii here.

Richard’s article on the case, “Does your Will do what you want? If not, don’t rely on a deathbed gift (Davey v Bailey)”, LexisPSL (09 March 2021) can be read here (subscription required).