Donatio mortis causa

A donatio mortis causa (Latin, meaning "gift on the occasion of death") is a gift made during the life of the donor which is conditional upon, and takes effect upon, death (in the United States, it is often referred to as a gift causa mortis). It is separate and distinct from both a normal inter vivos gift, under which title passes immediately to the transferee, and from a testamentary gift, which takes effect under the provisions of a properly executed will.

Where the subject matter is a chattel which has been delivered to the donee, the donee's title is complete on the donor's death, no further act being necessary. In the case of a chose in action or land, the donee's title is not complete on the donor's death as the legal title vests in the donor's personal representatives. The donee can seek the assistance of the courts to compel the personal representatives to do whatever is necessary to perfect the donee's title,^[1] and this is one of relatively few exceptions to the equitable maxim that "equity will not assist a volunteer."

Requirements

There are three requirements for a valid donatio mortis causa, and these were laid down by Lord Russell CJ in Cain v Moon [1896] 2 QB 283:

1. the gift must have been made in contemplation of, though not necessarily expectation, of death;^[2]
2. the subject matter of the gift must have been delivered to the donee;^[3] and
3. the gift must have been made under such circumstances as to show that the property is to revert to the donor if the donor should recover.^[4]

Contemplation of death

The donor must have been contemplating death more particularly than by merely reflecting that we must all die some day. Commonly, donationes mortis causa are made in reference to a particular illness, but the principle applies equally to other causes such as the embarkation of a hazardous journey,^[5] or possibly the contemplation of active service in war.^[6] However, if death occurs, the gift may still be valid even though it comes from a different cause to that contemplated by the donor.

Delivery of subject-matter

A donatio mortis causa will not be valid without a delivery of the property to the donee^[7] with the intention of parting with the "dominion" over it. It will not be sufficient for the property to be merely handed over for safe custody.^[8]

Antecedent delivery (i.e. delivery that was made before the gift) is also deemed effective for the doctrine to operate.^[3]

For choses in action the donor must hand over such documents as constitute "the essential indicia or evidence of title, possession or production which entitles the possessor to the money or property purported to be given."^[9]

For land, although it has been judicially doubted whether a donatio mortis causa could be made with respect to land,^[10] in Sen v Headley [1991] Ch 425 a donatio of land was upheld where the donor told the donee that he wished her to have the house, and he delivered the keys to the donee, and the donor told her where the title deeds were located.

Intention of the donor

The donor's intention must be to make a gift which is conditional upon death, and which is revocable upon recovery by the donor. There is no donatio mortis causa where the donor intends to make an immediate unconditional gift, even though that gift may fail,^[11] nor where the intention is to make a future gift.^[12] The conditional nature of the gift need not be expressed, but may be implied from the circumstances.^[13]

Revocation

In addition to the automatic revocation upon the donor's recovery,^[14] the donor may revoke expressly, or by recovering dominion over the subject matter.^[15] But the donor cannot revoke by will, as the donee's title is complete before the will takes effect.^[16] Where the gift is revoked but the title has actually been transferred, the donee holds the subject matter on trust for the donor. The gift also fails if the donee predeceases the donor.^[17]

Exceptional Status

Donationes mortis causa are one of the relatively rare exceptions to the general rule of public policy in common law countries that dispositions upon death must be under a will (or a document incorporated by reference into a will) that complies with applicable statutory requirements.^[18]

Arguably this exception to the Wills Act 1837 comes about because the gift is inter vivos, i.e. it comes into force before the death of the donor. This device also avoids the formalities of the Law of Property Act 1925 s53(1) - that requires dispositions of land to be made in writing. This latter exception was decided in Sen v Headley [1991] Ch 425, where the court finds that a "donatio mortis causa" is a form of constructive trust - thus falling under the exception of the Law of Property Act 1925 s53(2).

Footnotes

1. ^ Duffield v Elwes (1827) 1 Bli(NS) 497; Re Lillingston [1952] 2 All ER 184
2. ^ See also, Wilkes v Allington [1931] 2 Ch 104
3. ^ ^{a b} Cain v Moon [1896] 2 QB 283
4. ^ Wilkes v Allington [1931] 2 Ch 104
5. ^ cf. Thompson v Mechan [1958] OR 357, where it was held that the ordinary hazards of air travel were insufficient.
6. ^ Agnew v Belfast Banking Co [1896] 2 IR 204 at 221
7. ^ Ward v Turner (1752) 2 Ves Sen 431
8. ^ Hawkins v Blewitt (1798) 2 Esp 663
9. ^ Birch v Treasury Solicitor [1951] Ch 298 at 311
10. ^ Duffield v Elwes (1827) 1 Bli (NS) 497
11. ^ Edwards v Jones (1836) 1 My & Cr 226
12. ^ Solicitor to the Treasury v Lewis [1900] 2 Ch 812
13. ^ Re Lillingston [1952] 2 All ER 184
14. ^ Staniland v Willott (1852) 3 Mac & G 664
15. ^ Bunn v Markham (1816) 7 Taunt 224
16. ^ Jones v Selby (1710) Prec Ch 300 at 303
17. ^ Tate v Hilbert (1793) 2 Ves 111 at 120
18. ^ The other main exception, also an anachronism, is that of secret trusts.