Sen v Headley [1991] Ch 425
BH had lived as man and wife with Mrs Sen for ten years. They separated but remained close friends. On his death bed he told her: ’The house is yours, Margaret. You have the keys. They are in your bag. The deeds are in the steel box.’ He died intestate having, it seems, slipped the keys to the house and the only key to the steel box in the house containing the title deeds into her hand bag.
The question was whether title to the house passed to her by way of donatio mortis causa:
‘If the question whether the subject matter is capable of passing by way of donatio mortis causa is put on one side, the three general requirements for such a gift may be stated very much as they are stated in Snell’s Equity , 29th ed. (1990), pp. 380-383. First, the gift must be made in contemplation, although not necessarily in expectation, of impending death. Secondly, the gift must be made upon the condition that it is to be absolute and perfected only on the donor’s death, being revocable until that event occurs and ineffective if it does not. Thirdly, there must be a delivery of the subject matter of the gift, or the essential indicia of title thereto, which amounts to a parting with dominion and not mere physical possession over the subject matter of the gift.’ (Nourse LJ at 431 – 2)
The problem was the third element. Had there been a delivery of the subject matter of the gift? The title deeds were the relevant indicia ((Nourse LJ at 437) Had there been a parting with possession of the dominion of the house? Delivery of the title deeds could be such a parting. Whether or not it is is a question of fact (at 438). Here there had been a parting with dominion. (Nourse LJ at 439)
There was a doubt as to whether title to land was capable of passing by way of donatio mortis causa. Nourse LJ held that it was (at 441).
Michael Lower
