Grounds of Appeal to the Court of Appeal from the High Court Decision in Re Bogusz

Grounds of Appeal to the Court of Appeal from the High Court Decision in Re Bogusz

Brief summary of the case of Re Bogusz

1. Bogusz was born in 1920 in Ukraine. He relocated to the United Kingdom and started working as a laborer. Bogusz was illiterate, with poor knowledge of English. His marriage ended with a divorce in 1958, and the child born out of the marriage, Vallee, was sent to a foster home. Vallee grew up in the foster home and later got married to a French national. She relocated to China with her husband, and eventually to France.
2. Bogusz lived an extremely isolated and mistrustful life. Vallee used to visit him during Christmas. When she paid him a visit in August 2003, he was quite unwell and coughing. Vallee stated that Bogusz told her that he would not be alive the following Christmas, and that she would take the house after his death. There was no evidence to support these statements. Bogusz gave Vallee the deeds and keys to the house, and other personal items. Vallee went back to France and never came back until she heard the death of Bogusz in December the same year. Valley never had any control or access to the house for over four months, from the time Bogusz handed her the deeds and keys to his death.
3. That Vallee was an adopted child precluded her from claiming to be the heir of her biological father’s estate under intestacy rules. She made an application to the Treasury Solicitors that Bogusz’ property was transferred to her through the principle of donatio mortis causa. The Treasury Solicitors declined her claim and proceeded to advertise for prospective claimants to the estate. Eventually, a genealogist traced Bogusz’s brother and took out Letters of Administration for him.
4. Vallee sought the Oxford County Court’s declaration that Bogusz had gifted the property to her by virtue of donatio mortis causa. The court ruled in the first instance in favor of Vallee. The appellants appealed to the High Court on grounds that the case did not fully meet the requirements of deathbed gifts. The High Court affirmed the decision of the Oxford County Court that property had passed to Vallee by way of donatio mortis causa.

Grounds of Appeal

5. The High Court erred in law by holding that Bogusz had delivered the property to Vallee in contemplation of his impending death.
6. The High Court erred in law by holding that the property had been effectively delivered from the deceased to the respondent by way of donatio mortis causa.

III. The High Court improperly considered whether the facts brought the case under the justification and proper application of the concept of donatio mortis causa as stipulated by Sen v Headley[1].

The Doctrine of Donatio Mortis Causa

6. Donatio mortis causa involves the transfer of property to another person in the form of a gift whereby the donor contemplates death, and the property is intended to pass immediately after the death of the donor[2]. The case of Sen v Headley[3] set out three requirements that must be fully satisfied for a donatio mortis causa to be effective[4]. First, the gift must be made in contemplation of an impending death. Second, the gift must be made in a way that if the donor does not die, he may recover it. Third, the subject matter of the gift must be delivered from the donor to the donee, either physically or in any way indicative of transfer.
7. The concept of donatio mortis causa was introduced in English law in the 13^th Century[5]. The doctrine was particularly of little significance until the Statute of Frauds 1677 prohibited oral wills. The first case involving a donatio was Hedges v Hedges[6]. Lord Cooper LC stated categorically that a valid donatio occurs when a person is deprived of an opportunity to make a will due to a surprise with sickness or his contemplation of death, and he gives his property to his friends as a gift.
8. The concept of donatio mortis causa ought to be applied with great caution[7]. Atkins (2013)[8] points out that donatio mortis causa is the only doctrine that allows gifts to be made without complying with section 9 of the Wills Act 1837. The Wills Act aims at protecting the property interests of the testator. In extension to donatio mortis causa, the court must carefully consider the matter to see whether the donor was unduly pressurized to dispose of his property to unintended recipients.
9. In Sen v Headley, Mr Hewtt was hospitalized for a very long time, during which Sen paid him daily visits and took care of him. Hewtt gave Sen her own set of keys to his house. He sent Sen to bring her a bunch keys from a dashboard drawer in the house. He then placed the keys into Sen’s bag without her knowledge. When Sen asked him what would happen to his property in case he died, he said that his house belonged to her. After his death, Sen found the keys in a handbag. The keys were to the steel box which contained deeds of Hewtt’s house. The court held that the circumstances in the case gave rise to a donatio mortis causa whereby Hewtt gave Sen his property in contemplation of death.
10. The High Court relied on the case of Sen v Headley[9] which was the first to hold that land can also be subject to donatio mortis causa. The facts of Sen v Headley are almost similar to this case, only that the period between the handing over of keys and deeds was three days before the death of the donor and Sen had control and access to the house before Hewtt died.
11. Watt and Todd (2013)[10] and Atkins (2013)[11] observe that the doctrine of donatio mortis causa is the only exception to the maxim of equity that ‘equity does not assist a volunteer in perfecting an imperfect gift’[12]. Since this case does not fully meet the requirements of donation mortis causa, it can be said that the High Court acted contrary to the maxim of equity by assisting Vallee to perfect an imperfect gift.

Contemplation of Death

12. The learned High Court judge found that the donor had made the gift in contemplation of his impending danger, despite the fact that the donor died four months later. The judge pointed out that the issues of length of time between the time of donatio and the time of death was irrelevant to this case. Furthermore, he pointed out that it was not necessary to base on the fact that there was insufficient evidence to back up the belief of the deceased that he would not be alive by the next Christmas. Another issue that the judge found irrelevant was whether the donor might have had time to draft a proper will. According to the learned judge, the most important issue was whether the intention for the gift was in relation to the subjective contemplation of death in the near future.
13. Andrew Borkowski[13]points out that the donor should reasonably believe that he might die in the near future. Contemplating death in a year’s time is not reasonable, especially where there is no medical evidence of a severe illness[14].
14. The High Court did not base on any precedent to rule that four months can amount to impending death. Contemplation of death over four months cannot be regarded as ‘an impending death’, since no authority has ever sustained a length of more than a few days. Adopting the expression used in Re Craven’s Estate[15], the High Court argued that it is not adequate in these circumstances for the donor to have made a contemplation that he may die one day but that the gift was made in contemplation of death in the near future, where the donor died five days later. In the Appeal Court case of Sen v Headley[16], which was the main ground for the High Court ruling, the donor died three days after giving the keys to the donee.
15. In the case of Woodward v Woodward[17], a deathbed gift was effective because the period between the delivery of property and the death of the donor was three days. In this regard, the most important issue is whether the donor made the gift in contemplation of death, rather than whether he made the gift because he was old or isolated. It is also not sufficient to demonstrate that the donor was inevitably going to die.
16. It is not in order to claim that the gift was made in contemplation of death because the issue of contemplation of death is subjective[18]. The timing between the handing over of the keys and the death of the donor was too long as to diminish the validity of a donatio mortis causa. In addition, the lack of immediacy in terms of contemplation of death diminishes the moral justification of the act, without the need to be in extremis[19].
17. The respondents did not produce sufficient evidence to show that Bogusz believed that he would not be alive the following Christmas. For instance, there could have been medical diagnosis to indicate that he was in such a poor health that he could not live until the following Christmas. It was not prudent for the court to solely rely on Vallee’s statement that she found Bogusz quite unwell and coughing.

Passing of Dominion

18. Basing on Sen v Headley, the High Court ruled that the act of passing the key and title deeds to the respondent in contemplation of the donor’s death, together with the words exchanged between the donor and the donee, was sufficiently reasonable as to amount to delivery of dominion by way of donatio mortis causa.
19. The court failed to indicate how the property effectively passed from the donor to the donee. The concept of dominion is very difficult. It was long established in authorities as a condition but lacks a definition. According to Andrew Borkowski, it is difficult to distinguish the manner in which dominion operates between title and de facto possession[20]. Borkowski observes that dominion can best be defined as the right to be in control or possession of the subject-matter of the gift. Tangible property and chattels involve constructive or actual delivery. Intangible property, including choses in action and land, involve ‘indicia’ of title[21]. In the circumstances of this case, land falls under intangible property, which requires both physical possession and control of property and conceptual passing of indicia of title[22]. In order for the donee to succeed using a donatio mortis causa, the donor must have made efforts, between the time of the delivery and the time of his death, to change the subject matter of the property and replace it with other chattels or property[23].
20. In Birch v Treasury Solicitor[24], the court explained the concept of dominion where it was ruled that there is need for delivery of the indicia of title rather than mere evidence of title. The court established the requirement for physical transfer of property. However, the court concluded that the passing of dominion over indicia of titles is indicative of passing dominion over the property.
21. Nonetheless, there are certain circumstances where the indicia of title may pass to another person but dominion remains with the donor[25]. Nourse LJ, in Re Craven’s Estate[26], suggested that there might be circumstances where a person parts with dominion over the relevant indicia of title to a chose in action, but retains dominion over the property itself. The court indicated that a donor, in contemplation of death, may part with the dominion of the indicia of titles of his house, but not with the dominion over the house[27].
22. In the case of Sen v Headley[28], Mr. Hewtt had given Sen a set of keys and Sen operated the house even before the death of Hewtt. According to Hudson (2005)[29], Hewtt did not retain dominion over his property because he had not expected to return to the house, or to deal with it in any manner prior to his death.
23. This is different from this case, where Vallee went back to France after the donatio and never returned until she heard of Bogusz’s death. She did not have any control over the house. Furthermore, she did not have access to the house. The benefits that Mr. Bogusz retained were far more than fully theoretical due to the fact he still lived in the house and could do as he pleased with it. This shows that the house remained in the dominion of Bogusz, even though the dominion of indicia of title had passed to Vallee. In fact the High Court judge admitted that the doctrine of dominion is very slippery, but failed to analyze the facts objectively. For a valid donatio mortis causa, the donor must have effectively given the control of the property to the donee[30]. But since Bogusz continued living in the house for four more months, it implies that he did not pass control to Vallee.
24. The learned judge deviated from the point by further contending that the nature of the case of Sen v Headley[31] in relation to the control of property was ‘sufficient’ but ‘unnecessary’. The facts and the holding of the Court of Appeal are binding, and there was no ground for the judge to slip from the concept well expounded in the case. In this regard, the appellants hold that the fact that Sen was in effective control of the property since Hewtt was in hospital, and with no practical possibility of him returning to take control of the property, is both sufficient and necessary. It is this relevant point that demonstrates the transfer of both dominion over indicia of titles and dominion over the house from the donor to the donee. Since in this case, the donor did not pass dominion over the house to the donee, it is presumed that the house remains the property of the trustee.
25. It is my submission, therefore, that the High Court erred in law by dismissing the claims that the facts in issue did not fully satisfy the requirements for a valid donatio mortis causa. The property was not given to the respondents in contemplation of impending death because the donor died four months later after giving the respondent the keys and deeds. The respondents did not produce sufficient evidence to show that Bogusz had said that he would not be alive the following Christmas. The judge did not also show how passing of the dominion over the keys and deeds indicated the intention of the donor to deliver the dominion of his house to the donee. The respondent did not enjoy any control over the property. She did not access it since the time she was given the keys and deeds until the death of Bogusz. The donor retained his control over the house, implying that he did not part with dominion over the house.

 

 

 

 

 

References

Atkins, Scott, Equity and Trusts (Routledge 2013).

Beaumont, Re. Donatio mortis causa: Death bed gifts (Equity & Trusts: Text, Cases, and Materials 2013).

Birch v Treasury Solicitor [1951] Ch 298.

Borkowski, Andrew, Deathbed Gifts: The Law of Donatio Mortis Causa (Blackstone Press 1999).

Cain v Moon [1896].

Edwards, Richard and Stockwell, Nigel, Trusts and Equity (7 edn, Pearson Education 2005) 34.

Gray, Kevin and Gray, Susan Francis, Land Law (Oxford University Press, 2011).

Hedges v Hedges (1708) Prec Ch 269.

 

Hudson, Alastair, Equity and Trusts (Psychology Press, 2012).

Hughes, Bob, ‘The Exception is the Rule: Donatio Mortis Causa’ (2003) 7(1) Journal of South Pacific Law <http://www.paclii.org/journals/fJSPL/vol07no2/2.shtml> accessed 31 January 2014.

Pawlowski, Mark. “Revocable gifts and estoppel.” Trusts & Trustees 18, no. 1 (2012): 64-67.

Pearce, Robert, Stevens, John and Barr, Warren, The Law of Trusts and Equitable Obligations (Oxford University Press 2010).

Penner, James, The Law of Trusts (Oxford University Press 2012).

 

Ramjohn, Mohammed, Text, Cases and Materials on Equity and Trusts (Routledge 2008).

Re Bogusz [2013] EWHC 1449 (Ch).

Re Craven’s Estate [1937] Ch 423.

Re Wasserberg (1915) 1 Ch 195.

Sen v Headley [1991] Ch 425.

Snell, Edmund Henry Turner (1929). Snell’s Principles of Equity (20 ed.). London: Sweet & Maxwell. p. 24. quoted in Williams, James (1932).

Statute of Frauds 1677.

Strong v Bird (1974).

Watt, Gary and Todd, Paul, Todd & Watt’s Cases and Materials on Equity and Trusts (Oxford University Press 2013).

Weston, Re, Delivery of Dominion over the Subject Matter of the Gift (Equity & Trusts: Text, Cases, and Materials, 2013).

Wilson, Sarah, Todd & Wilson’s Textbook on Trusts (Oxford University Press, 2013).

Wills Act 1937.

Woodward v Woodward [1995] 3 All ER 980.

 

 

 

 

 

 

[1] [1991] Ch 425.

[2] Beaumont, Re. Donatio mortis causa: Death bed gifts (Equity & Trusts: Text, Cases, and Materials 2013).

[3] [1991] Ch 425.

[4] See also Cain v Moon [1896], per Farwell J; Birch v Treasury Solicitor [1951] Ch 298.

[5] Pearce, Robert, Stevens, John and Barr, Warren, The Law of Trusts and Equitable Obligations (Oxford University Press 2010).

[6] (1708) Prec Ch 269.

[7] Wilson, Sarah, Todd & Wilson’s Textbook on Trusts (Oxford University Press, 2013).

[8] Atkins, Scott, Equity and Trusts (Routledge 2013).

[9] [1991] Ch 425.

[10] Watt, Gary and Todd, Paul, Todd & Watt’s Cases and Materials on Equity and Trusts (Oxford University Press 2013).

[11] Atkins, Scott, Equity and Trusts (Routledge 2013). See also Strong v Bird (1974).

[12] Snell, Edmund Henry Turner (1929). Snell’s Principles of Equity (20 ed.). London: Sweet & Maxwell. p. 24. quoted in Williams, James (1932).

 

[13] Borkowski, Andrew, Deathbed Gifts: The Law of Donatio Mortis Causa (Blackstone Press 1999).

[14] Pawlowski, Mark. “Revocable gifts and estoppel.” Trusts & Trustees 18, no. 1 (2012): 64-67.

[15] (No.1) [1937] Ch 423.

[16] [1991] Ch 425.

[17] [1995] 3 AllER 980.

[18] Hughes, Bob, ‘The Exception is the Rule: Donatio Mortis Causa’ (2003) 7(1) Journal of South Pacific Law <http://www.paclii.org/journals/fJSPL/vol07no2/2.shtml> accessed 31 January 2014.

 

[19] Ramjohn, Mohammed, Text, Cases and Materials on Equity and Trusts (Routledge 2008).

[20] Borkowski, Andrew, Deathbed Gifts: The Law of Donatio Mortis Causa (Blackstone Press 1999).

[21] Edwards, Richard and Stockwell, Nigel, Trusts and Equity (7 edn, Pearson Education 2005) 34.

[22] Gray, Kevin and Gray, Susan Francis, Land Law (Oxford University Press, 2011).

[23] Per Farwell LJ, in Re Craven’s Estate.

[24] [1951] Ch 298.

[25] Weston, Re, Delivery of Dominion over the Subject Matter of the Gift (Equity & Trusts: Text, Cases, and Materials, 2013).

[26] [1937] Ch 423.

[27] See also Re Wasserberg (1915) 1 Ch 195.

[28] [1991] Ch 425.

[29] Hudson, Alastair, Equity and Trusts (Psychology Press 2012).

[30] Penner, James, The Law of Trusts (Oxford University Press 2012).

[31] [1991] Ch 425.

 

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