Expert Witness Journal Dec 24 - Journal - Page 18
The court held that the requirements for a donatio
mortis causa were satisfied in respect of the contents
of the bank accounts and the properties, but not the
furniture or contents of the properties.
Carry had a falling out with David. This prompted her
to see her solicitor again, in late 2021, with a view to
making yet another Will, this time one that excluded
David and Angela.
It was found that the Deceased had satisfied limb (3)
above (delivery of the items gifted) by;
• Handing to the Claimant the land certificate for the
house and the leases for the rented flats (and where
the Claimant already held the house keys); and
Before that Will could be signed, Carry went into
hospital. Her solicitor went to see her in hospital, on
the afternoon of 26th January 2022. She took with
her (a) the original Will of 2020 (b) the last draft from
November 2021 (excluding David and Angela) and
blank sheets of paper so she could write a wholly new
Will if needs be.
• Informing the Claimant of the login details and
passwords for the online accounts, and giving him the
bank cards.
The solicitor’s file note of that visit takes up the story
(with “HW” being the solicitor);
It was held there was no reason to distinguish between
registered and unregistered land for the purposes
of donatio mortis causa; even though a Land Certificate
(such as the one given to the Claimant in this case) is
largely now redundant, the question was with what intention that land certificate had been handed over.
The fact there is another means of actually transferring the legal estate in the land was deemed irrelevant.
“(2) Carry knew why HW was there and also her name, and
HW was confident that instructions could be taken. Carry
was clearly in a lot of distress with her pain. She was on a vibrating bed and had boots on in respect of her bed sores. Carry
was moaning and grimacing throughout the appointment that
HW was with her, although the pain relief did seem to help a
little.
(3) Carry not initially being 100% clear and said that her
sister, Josephine Oakley, had attended her this morning. HW
was surprised, as Mrs Oakley had said that she wasn't
going to attend on Wednesday to see Carry, but clearly had
changed her mind because she knew that HW was going to be
attending that afternoon……
It is, however, a case of ‘watch this space’; owing to the
novel (and important) point of law raised in the case,
the trial judge subsequently gave permission to appeal
on 5 of the 8 grounds of appeal raised, which included
whether handing over land certificates and passwords
to online bank accounts could amount to “delivery” of
the gifts in question.
(4) Josephine has clearly been spending a lot of time with
Carry over the last few days, and appears to be visiting her daily.
Discussing the situation with Paul and Josephine. Carry saying
that Josephine says that Paul is just after the money and out to
get what he can. HW saying to Carry it doesn't matter what
Josephine says- it's what Carry wants to do with her estate that
matters. Carry saying 'Paul's been good to me. My sister hasn't'.
HW agreeing with Carry that she has had a love/hate relationship with Josephine over the years, and Carry has told HW
about the amount of money and hardship that Josephine has
caused her over the years. Carry not denying this.
There was some (inaccurate) reporting in the wider
press that Mr Al Mahmood had made a Will by sending a text message in this case. He had not; instead the
text message he sent was merely one point evidence of
the 'deathbed gifts' he had made to the Claimant.
The “Partially Torn Will” Case
Crew v Oakley was another case that gathered a lot of
column inches in the general media. The facts of this
case start in a fairly typical fashion;
• The testator (Carry) was born in 1930 and died aged
92 on 15th February 2022. Her husband had predeceased her in 2007.
(5) HW explaining to Carry that her current Will was still in
place, and this appointed her cousins Angela and David as the
executors and also passed a lot of the estate to them. Carry saying that she definitely didn't want this to happen. HW advising Carry that if she didn't want this to happen then she could
tear up her current Will but then she would be intestate. HW
confirming that if Carry was intestate then Josephine, as
Carry's sole and closest relative, would be entitled to all of the
residuary estate. Carry confirming that Josephine was her only
sibling and no other previous siblings were part of the family.
• According to the Claimants, David and Angela, they
had been very close to Carry and Ron since they first
met in 1962. That friendship continued over the
years, they said, as shown by Carry appointing Angela
as one of her executors in her 2003 Will, then adding
David as an executor in her 2013 and subsequent
Wills, and making a bequest of half of her residuary estate to them both in the last few Wills.
(6) HW saying to Carry that if she was adamant that she
didn't want David and Angela to deal with the administration
and to inherit from her estate, that she could tear up her old
Will. HW had brought the original with her, and Carry was
happy to do this. Carry was able to tear around three quarters
of the way through and then HW helped her tear up the rest
of it.”
• In 2020 Carry made what would be her final Will.
David and Angela remained executors, and they were
also gifted a Caravan, and 25% each of the residuary
estate, with the other 50% passing to Kevin (25%) and
Jason and Leon (12.5% each), all three being distant
cousins of Carry.
Carry died around two weeks later, and a fight for
control of her Estate ensued; Josephine asserted Carry
had died intestate, and that she was entitled to be personal representative alone, with David and Angela
seeking to rely on the 2020 Will as appointing them
validly as personal representatives.
• Carry’s sister, Josephine, was excluded from the various Wills entirely. The sisters had a particularly fractious relationship.
Then the case gets a little more atypical…..
EXPERT WITNESS JOURNAL
16
DECEMBER 2024
