Vallee vs. Birchwood Court of Appeal Judgment - Essay Example

Vallee vs. Birchwood Court of Appeal Judgment Facts of the Case The facts of this case are as follows. Wrodzimierz Bogusz arrived in the UK from Ukraine as a post-war immigrant and married in 1948, during which time he had one child named Cheryle Vallee prior to his divorce in 19581. Vallee grew up in foster care and her carers eventually adopted her when she was aged 13. Four years after his divorce, Mr Bogusz bought unregistered land in 2 Eldon Street in Reading. His daughter, Ms. Vallee was married to a French national, after which she moved to China and finally to France. Occasionally, she visits her father Mr Bogusz, especially during Christmas, who has become increasingly isolated and distrustful of everyone, living without a phone and scared of being burgled2. In addition, there is no evidence that Mr Bogusz has been in contact with his Ukrainian family. There are several facts that give rise to donatios mortis causa. Vallee visited Mr Bogusz on the 6th of August 2003 and found him to be quite unwell with a “chesty” cough, although the two did not discuss any diagnosis. When they referenced the next Christmas period, Mr Bogusz said that it was not his expectation that he would live for much longer. In fact, he claimed that he may not live to see the next Christmas. According to Vallee, Mr Bogusz wanted the land to pass on to her after his death, giving her the keys and title deeds to his house3. However, over the course of the appeal case at the High Court, she corrected this to mean one key, which she did not retain. In addition, Mr Bogusz gave Vallee a plastic bag that contained his photo album and war medals. However, Mr Bogusz continued living in his house and property and Vallee had no access and did not visit him after that4. Thereafter, Mr Bogusz survived for at least another four months before dying on the 9th of December 2003 from bronchopneumonia. Initially, this was thought to create bona vacantia and intestacy. Ms Vallee intimated a claim to TSol who rejected her claim of a donatio mortis Causa5. The defendant involved heir hunters to trace a brother, as well as other relatives living in the Ukraine and, in 2009; Tsol accepted the brother’s entitlement. Ms Vallee instituted a claim in 2012 and circuit judges decided in her favour during the trial in Oxford County Court. This they did with little academic analysis, while they did not cross-examine Ms. Vallee. The case was appealed at the High Court Chancery Division to Judge Jonathan Gaunt QC, sitting as deputy judge. The case was again dismissed and the case was appealed at the Court of Appeal. The Decision Making their case at the Court of Appeal, the defendants in the case had two main grounds of appeal. First, the appellant has contended that Mr Bogusz did not make the decision with impending death in mind because he survived for another four months, which they claim is a fortiori because the doctrine of donatio mortis causa was created in order to take care of an individual’s inability to make a testament or will6. In addition, the appellant also contends that there has been no passing of dominion because Mr Bogusz continued live on the property and still controlled the property that had been given as a gift to Ms Vallee. I will address each in turn. With regards to Mr Bogusz’s impending death, a review of cases that the defendants have cited before the court show that the time between the gift and the person’s death was normally only a few days. This happened in Sen v Headley, re Craven’s Estate, and Woodard v Woodard, which lasted 3 days, 5 days, and 3 days respectively7. Judge Jonathan Grant QC held in the appeal that the test of death as impending is of a subjective nature. According to him, the question that arises in this case is not whether Mr Bogusz had sufficient grounds to anticipate his death or whether he died as speedily as he expected, but whether his motive in giving the gift was informed by his thinking of death as being in the near future. The matter to the length of time was also taken by the judge to be a matter of impression. He contended that most people would consider that a man who anticipated dying within the next five months was thinking of his imminent death8. In this context, the Court of Appeal also considers that Mr Bogusz anticipated his death before the next Christmas day and Vallee’s visit, which equates to the near future. The Court also considers Mr Bogusz’s prediction of his death to have been accurate. We do not consider that his lack of opportunity to craft a will is a requirement in this case. We consider that at the moment the gift was made by Mr. Bogusz to Ms Vallee, it was important that he was contemplative of his imminent demise. It was also not necessary that he was certain of his demise. In addition, the donor should only be motivated by the imminence of his death in making the gift to Ms Vallee. The intent to donate is motivated because the donor believes that he is close to death9. However, it is also required that, once the donation is made in contemplation of death, the property is delivered effectively to the recipient, in this case Ms Vallee, or that the formalities needed for the property to be delivered are completed fully. We are cognizant of the fact that, although Ms. Vallee received the keys to Mr. Bogusz’s property, she did not retain the key. In this case, Ms Vallee was only in full possession of the keys when Mr. Bogusz had already died, which means that she was unable to control the property before he died. The transfer of the donee’s possession of property is fundamental in a case of donatio mortis causa10, which it is our opinion that, on not retaining the keys to the property, Ms Vallee did not retain possession of the property after it was donated to her. It is also our opinion that the gift was revocable because the donor Mr. Bogusz did not die immediately. In fact, it can be said that he went through some sort of recovery prior to his later demise. Even though Mr. Bogusz died, we believe that the donatio mortis causa was invalid. Other cases that have argued donatio mortis causa had a period of less than five days between the donation and demise11. A person contemplating their death, as was Mr. Bogusz, has the right to make a donation but we also recognize the period between donation and demise, which we find to have been excessive. Judge Jonathan Grant QC claimed in his ruling that he did not consider that equity was meant to be used in cases like this because of sympathy for those who were caught in extremis. Instead, it was his contention that equity’s main purpose was to endow the intentions of the donor with adequate impact so that the conscience of their individual representative will be affected12. However, the court finds difficulties with this line of reasoning. For example, is this a new unconscionability test, is it similar to an estoppel, and does it take the constructive trust’s role a little too far? If so, it is our thinking that this same reasoning should also apply to a person who makes a nuncupative will. In addition, it should also be applicable to those whose wills are invalidated because of its inadvertent attempt to be formal13. In this case, the person representing the maker of the will knows that they administer the estate according to the wishes of the testator. We find that the point made by Jonathan Grant QC at the Chancery Court lacks authority and was not necessary in making this decision. We suggest that this added line of thought should be approached with more caution. With regards to the passing of dominion, the court considers this to be a difficult concept that has long been established as a requirement in authority but has not been clearly defined. It seems to be something, which is less than ownership, whereas also being more than simple possession14. This has been taken to mean that it lies between de facto possession and title ownership, which can be best defined as an individual’s right to control or possess the gift. We find the distinction between intangible property and tangible property important in this case. Tangible properties have constructive or actual delivery, while intangible property will normally involve indicia of title. However, the question arises as to how land should be considered and categorized. We find that it is both intangible with regards to equitable interest and land to the title and tangible with regards to the land and fixtures, as well as15. The appellant submits that land is in a third category that needs physical control and possession of the land, as well as a conceptual passing of indicia. Like the defendant in Sen v Headley who was unsuccessful, the appellant in this case has also relied on Re Craven’s Estate. Here, the donor is required to put it outside his control between his donation of the gift and his death to alter the gift’s subject matter and substitute other chattels and properties for the gift. In Birch v Treasury [1951] Ch 298, the principle regarding dominion delivery was held to mean that indicia of title must be delivered and that this should be distinctive from mere evidence that the title is in the defendant’s possession16. It is important that there was evidence of an act through which the title was transferred physically. In cases where land is concerned, it is not crucial for the donee to exclusively deliver physical possession of the title, while the donor is not required to part with the land or title. Jonathan Grant QC in rejecting the appeal contended that it was not necessary for Mr. Bogusz to have written a will even though he lived for four months. If this were to hold, Ms Vallee would have had to retain possession of the keys, which, as mentioned earlier, she did not. While Mr. Bogusz’s continued use and enjoyment of his property is not incompatible with his wish to give Ms Vallee ownership of his property, again her decision not to retain the keys can be taken as a rejection of the gift. Although Jonathan Grant QC used the Sen v Headley case to show that indicia of title was handed over to the recipient of the gift after the keys to the property were handed over17, we still hold that her reluctance to hold onto the keys voids the gift. The decision made by Jonathan Grant QC depended on closely analysing Sen v Headley, in which Nourse LJ accepted the distinction between dominion over a house and that over title deeds, which indicated some form of control over the physical house18. The ruling considered whether a case in which indicia were given to another but not dominion. While we do not make a suggestion that it is impossible to part with dominion over the vital title indicia, we, nevertheless, contend that dominion could be retained overt the chose. In addition, it is possible that someone, contemplating their impending demise, could part with dominion over the deeds of their house to a done, but still grant the tenancy of the project to another party19. In such a case, it is possible to hold that the alleged gift donor did not part with their house’s dominion. In the eyes of the law, by retaining the property’s keys and title, Mt Bogusz retained control and possession of his property. In addition, the benefits that were accrued from the property were accrued to him and there was a possibility that he could have lived longer. We find that he had not parted with dominion over the deeds to his property. Ms Vallee was not in possession of the house keys or deeds at the demise of Mr Bogusz. The appellant contends that this was the case for Mr Bogusz’s house because Ms Vallee did not have control or possession over the property. Mr Bogusz retained the benefits of the property because he continued to live in his house and did what he wanted while living there20. We also take into consideration Judge Jonathan Grant QC’s contention that dominion is a slippery concept. He dealt with a passage from Sen v Headley by describing its features as adequate but unnecessary to donation mortis causa. Any chance of Mr Bogusz making physical changes to his house were unrealistic because of his failing health and the court should seek to only look at practical possibilities. Therefore, the court holds that the retention of the Mr Bogusz’s property was not consistent with a gift that could become effective in the future on his demise. It would defeat the purpose of donation mortis causa if Mr Bogusz continued to profit from the property and receive rent for it21. This proposition is supported by that fact that the same would hold for control of pass books to bank accounts if the person giving their money as a gift continued to profit from his savings by collecting interest. Therefore, we overturn the previous ruling and hold that the property reverts to Mr Birchwood. 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