Deathbed gifts of land

Essentially, three conditions must be satisfied for an effective donatio mortis causa, or deathbed gift, of land. First, the gift must have been made in contemplation of death, meaning “not the possibility of death at some time or other, but death within the near future, what may be called death for some reason believed to be impending”: Re Craven’s Estate [1937] 1 Ch 423. Secondly, the gift must be intended by the donor to be conditional on death. The effect of this requirement is that the gift remains revocable by the donor at any time prior to their death. Thirdly, the donor must part with dominion over the property before their death – in other words, there must be a parting with the donor’s ability to control the property: Birch v Treasury Solicitor [1951] Ch 298. If these conditions are satisfied, the donee has the right to call for a transfer of the land as a consequence of a constructive trust which arises once all the elements are satisfied. Accordingly, section 53(2) of the Law of Property Act 1925 will apply so as to exclude the gift from the formalities required for the transfer of land imposed by section 53(1) of the 1925 Act. Unregistered land In Sen v Headley [1991] Ch 425; [1991] EGCS 23, the Court of Appeal held that a gift of unregistered land by the constructive delivery of the title deeds could be the subject of a valid donatio. In that case, the deceased, while dying in hospital and in response to the question as to what the claimant should do about his house if anything should happen to him, had told her: “The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.” At some point, the deceased had slipped into the claimant’s handbag the keys to the locked steel box, apparently without her knowledge. This was held to amount to a constructive delivery of dominion over the property. In Vallee v Birchwood [2014] EWHC 2083 (Ch); [2014] PLSCS 197, also concerning unregistered land, the deceased had said to his daughter that he wanted her to have his house when he died and gave her the title deeds, a house key and some personal belongings. The primary issue was whether the daughter had acquired dominion over the property in question. On this point, the deputy judge, considering Birch, concluded that there had to be a handing over of the essential indicia of title (as opposed to mere evidence of title) meaning “the document or thing the possession or production of which entitles the possessor to the money or property purported to be given”. In the instant case, the delivery of the title deeds to the daughter was a sufficient delivery of dominion, notwithstanding that the deceased had remained living in the property until his death. In King v Dubrey [2014] EWHC 2083 (Ch); [2014] PLSCS 196, an aunt presented her nephew with the title deeds to her unregistered house, saying: “This will be yours when I go.” He took the deeds from her and put them in his wardrobe. Although the gift failed as a donatio for other reasons, the Court of Appeal held that, on the authority of Sen, the handing over of title deeds to the house constituted delivering dominion over the property. The fact that the nephew kept the title deeds in his bedroom at his aunt’s house, rather than depositing them at a bank or a solicitor’s office, did not affect the position: see also Keeling v Keeling [2017] EWHC 1189 (Ch). Registered land Since the enactment of the Land Registration Act 2002 Act, the practice is to issue only an official copy showing the state of the register on completion of the registration process. It is no longer the practice to issue a land certificate. Can, therefore, the official copy now suffice as a sufficient indicum of the registered title? Alternatively, what if the donor has retained the land certificate from a previous dealing which took place prior to the 2002 Act and hands this over to the intended beneficiary with the intention of making a conditional gift? Would it still be treated as a document of title, given that it is no longer Land Registry practice to require surrender of land certificates on any dealing with the land? In Davey and another v Bailey and others [2021] EWHC 445 (Ch); [2021] PLSCS 46, Judge Jarman QC was not prepared to give any detailed consideration to the question whether delivery of office copy entries in respect of registered property may constitute delivery of dominion as it did not arise on the facts before him. He did, however, comment that “it would certainly be odd if the requirements of deathbed gifts altered depending upon whether the property is registered or unregistered”. Interestingly, a transfer of the registered title executed by the donor to the donee to take effect only on the former’s death has been held to amount to sufficient delivery of dominion even though, strictly speaking, it is not a document of title: see the High Court of Singapore ruling in Koh Cheong Heng v Ho Yee Fong [2011] 3 SLR 125 and Cooper and Macdonald v Seversen (1956) 1 DLR (2d) 161. Most recently, in Rahman v Hassan [2024] EWHC 1290 (Ch), Judge Paul Mathews stated: “So far as I can tell, nowhere in [Sen] does the court suggest that registered and unregistered land are being distinguished, and that a donatio mortis causa may extend to one but not the other. The transfer of interests in registered and unregistered land at law is subject to special formalities which differ from each other, as also is the transfer of company shares, insurance policies, bills of exchange, bank accounts, bonds and debts generally. “Yet all are capable of being the subject of a constructive trust without writing. There is no conceptual reason to distinguish between them for these purposes. To do so would be to create a further anomaly. I, therefore, hold that in principle there can be a donatio mortis causa of registered land, as of unregistered.” Interestingly, the learned judge referred to the Singapore ruling in Koh Cheong, stating that “where a transfer of registered land is executed in favour of the donee to take effect on the donor’s death, but is registered at the Registry of Titles (the land register in Singapore), that can constitute a valid donatio mortis causa”. In his view, therefore, a land certificate did not cease to be capable of being an indicum of title after the coming into force of the 2002 Act. Accordingly, there had been a valid deathbed gift of the deceased’s house despite it being registered land. Interestingly, he held that the handing over of an office copy entry of the register would also have sufficed. Similarly, the handing over of the actual leases of two flats owned by the deceased, where there were no land certificates, was held by the judge to amount to sufficient delivery of the registered title. Handing over of keys Can the handing over of keys qualify as a parting of dominion over the subject-matter of the gift? In Woodard v Woodard [1991] EWCA Civ J0307-6, the defendant, whose father was in hospital, had possession of his father’s car and one set of keys to the car. A few days before his death, the father said to the defendant, referring to the car: “You can keep the keys, I won’t be driving it any more.” The Court of Appeal held that, where appropriate words were used, it was possible to make a gift where the object in question was already in the possession of the donee as bailee before the gift was made, without it being necessary for the object to be handed back and redelivered. The deceased’s statement that his son could “keep the keys” was sufficient evidence demonstrating his intention to transfer dominion over the car. Interestingly, in Sen, the deceased had retained a set of keys to the house, but this was held not to prevent the effective transfer of dominion over the property. The decision in Vallee also suggests that it is not necessary that the donee be given total control over the property as partial dominion will be enough so long as the donor suffers a corresponding deprivation of power to deal with the gift. Significantly, therefore, the giving of a house key to the daughter, which allowed her access to the house, was considered enough to diminish the donor’s control over it but not such as to be incompatible with the conditional nature of the gift. Mark Pawlowski is a barrister and professor emeritus of property law at the School of Law, University of Greenwich Photo © Dima Solomin/Unsplash