A. Introduction
Donatio mortis causa (“DMC”) may appear to be an attractive option for those looking to justify inter vivos dispositions that are contrary to a deceased’s last will. DMC permits, in proscribed circumstances, a “deathbed gift” made by the deceased to take effect outside of the last will, circumventing testamentary intent which is clearly expressed and evidencable.
On 17 December 2025, following a 2-day trial, HHJ Evans-Gordan gave ex tempore judgment dismissing this interesting claim of DMC. In so doing, the court adhered to the new limits of DMC claims as set out by Jackson LJ in King v Dubrey and ors. [2015] EWCA Civ 581, at [60], namely:
“Because [DMC] is open to abuse, courts should require strict proof of compliance with those requirements. The courts should not permit any further expansion of [DMC].”
George Woodhead and Jake Long, instructed by Andrew Townsend of Kiteleys Solicitors, acted for the successful Defendants.
B. Factual Background
The deceased’s last will, executed in March 2010, permitted the Claimant to occupy the Deceased’s property for ten years. Subsequently, the property was to be sold, and the proceeds divided among the children of the deceased: the Claimant and the Defendants.
The Deceased died in mid-May 2010, and the Claimant remained in occupation of the property. However, in 2023, the Defendants brought proceedings in the Chancery Division for vacant possession of the property, to be sold in accordance with the will.
Only at this stage, some thirteen years after the deceased’s death, did the Claimant first raise DMC. The DMC claim was transferred to the Central London County Court for trial.
The Claimant alleged that whilst the deceased was in hospital in early May 2010, he had handed the Claimant a bunch of keys to the property and to a bureau containing deeds to the property. The words alleged to have been spoken by the deceased at the time were “this is yours now, look after it”. The Claimant’s niece gave evidence in support of events.
C. Issues and Judgment
The two questions for the court to determine were (i) whether the deceased had handed over the keys and used the words alleged in May 2010, and (ii) whether this amounted to DMC.
In relation to the first question, and cognisant of the requirement of “strict proof” (King v Dubrey, at [40]), the court determined that on the balance of probabilities the deceased had handed over the keys and used the words alleged.
Regarding the second question, the court had to determine whether there was an inter vivos gift (i) made in contemplation of death, (ii) conditional upon the deceased’s death, (iii) where the deceased had parted with dominion of the subject matter.
In relation to whether the gift was made in contemplation of death, an argument was raised by the Claimant that this must be purely subjective contemplation. The Defendants argued that, on a proper reading of King, the test was both subjective and objective (King v Dubrey, at [55]). The judge held that whilst a deceased must subjectively contemplate death, there must be a proper, objective basis for this contemplation – thus imparting a degree of objectivity into the court’s assessment. Notwithstanding this, the judge held that on the facts, the deceased did contemplate death (and had justifiable cause to contemplate his imminent death) and that the first limb of DMC was satisfied.
In relation to whether the death was conditional on death, the judge found that the claim failed on this limb. The judge held that DMC requires strict and unequivocal language to ensure that no mistake is made in ascertaining the deceased’s intentions. The judge accepted that the words “this is yours” did not necessarily refer to ownership of the property and could reasonably be referring to possession of the keys themselves. The judge stressed that the effective words must clearly define the subject matter of the gift, and handing over the keys was consistent with the Claimant’s interest in occupation of the property, as provided by the terms of the will.
In relation to whether the deceased had parted with dominion, the judge was satisfied that if a conditional gift had been made, handing over the keys to the property and keys to a bureau which contained deeds to the property would have been sufficient.
D. Analysis
Two interesting points arise from Howe v Howe, which is the first decision (of which the authors are aware) since the successful DMC claim in Rahman v Hassan [2024] EWHC 1290 (Ch).
Firstly, whether a gift is made in contemplation of death is not purely subjective; there must be a proper basis for it. To borrow an analogy used during these proceedings, a person predisposed to worry who had stubbed their toe may contemplate their death as a result. If they were to suddenly die by some other, unforeseen means, their contemplation of death would not be sufficient for the purposes of DMC.
Secondly, the subject matter of a gift must be clearly defined, either in the deceased’s words or actions. Ambiguity of the subject matter will likely be a fatal blow to a claim of DMC.
DMC is an antiquated doctrine which was familiar to lawyers at the time of Justinian. It is a doctrine that sits uneasily with modern statutory protections relating to wills and the disposition of land. King v Dubrey was the death knell to further expansion of the doctrine, keeping DMC within manageable bounds.
Reasonable arguments can be made for consigning DMC to the history books. However, until that day comes, Howe v Howe is an encouraging indication that the courts will be wise to attempts to expand the scope of DMC any further.
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