It was a gift or was it?

A 58 year old window cleaner has found himself in very hot water following the death of his brother. Peter Ivory is locked in a bitter battle with his two brothers (and nephew) over the distribution of his late brother’s estate following his death in November 2018.

Mick Ivory died in November 2018. He had not made a will. Someone who has not made a will is said to have died intestate and usually their estate would fall to be distributed in accordance with the intestacy rules. In Mick’s case as he did not have any children and his wife had pre-deceased him, the intestacy rules meant that his estate should have been distributed equally between Peter and his other two brothers, Alan and John.

Peter had sole control of administering Mick’s estate which included the sale of his house. He also had some Osmond memorabilia which had belonged to his late wife. Peter arranged to donate the Osmond memorabilia to the Osmond fan club but once the house had sold rather than distributing the net estate equally between him and his two brothers, he disposed of the monies by giving the same to hard working individuals and charities.

Alan and John (together with Peter’s nephew) brought proceedings against Peter. Peter sought to defend those proceedings relying on the legal concept of donatio mortis causa. Donatio mortis causa is a gift made in contemplation of death which goes against the usual rules of gift making – i.e. there is no need for it to be in writing, signed and witnesses as would be the case in the making of a will.

Peter claimed that Mick, on his death bed, told Peter to keep all the money and if he could not do so to give it away. He said Mick’s whole plan was to make sure that the rest of the family did not get their hands on his hard-earned money. Peter did not want the money but he was determined to carry out his late brother’s dying wishes and so he gave it all away going out on to the streets in Cambridge and handed out fifty pound notes to random homeless people. He also donated some money to hard-working individuals. He did not keep any records or receipts nor did he seek to identify any of the individuals who he chose to benefit, focussing instead simply on disposing of the estate so that Alan and John did not inherit any of the money.

It may be that Mick did make a gift of his estate to Peter upon his death. Unfortunately, his actions, in choosing not to document any of the distribution of the monies have left him in a difficult position as following a recent court hearing, Judge Teversen has now made an order that he give a full account of the money he has distributed. This means in practice that he must demonstrate where the money has gone. The judge has also attached a penal notice to the order. As a result, if he fails to comply with the order, the judge could hold him in contempt of court. Such an offence is potentially punishable by way of a prison sentence!

Whilst donatio mortis causa is a legal concept that can be relied upon to displace the usual provisions as regards the distribution of a deceased’s estate, whether on an intestacy basis or in accordance with the provisions of a will, it remains necessary for the donee (the person benefiting from the gift) to provide satisfactory evidence as regards the legitimacy of the gift. Donees should therefore be very wary of disposing of any funds received on a donatio mortis causa basis without a clear agreement from all other potential beneficiaries of the deceased or, in default, a court order.