Donatio mortis causa
Encyclopedia
A donatio mortis causa 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 representative
s. 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, and this is one of relatively few exceptions to the equitable maxim
that "equity will not assist a volunteer."
in Cain v Moon [1896] 2 QB 283:
Antecedent delivery (i.e. delivery that was made before the gift) is also deemed effective for the doctrine to operate.
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."
For land, although it has been judicially doubted whether a donatio mortis causa could be made with respect to land, 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.
for the donor. The gift also fails if the donee predeceases the donor.
(or a document incorporated by reference
into a will) that complies with applicable statutory requirements.
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).
Gift (law)
A gift, in the law of property, is the voluntary transfer of property from one person to another without full valuable consideration...
made during the life of the donor which is conditional upon, and takes effect upon, death
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
(in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, it is often referred to as a gift causa mortis). It is separate and distinct from both a normal inter vivos
Inter vivos
Inter vivos is a legal term referring to a transfer or gift made during one's lifetime, as opposed to a testamentary transfer ....
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
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
.
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
Chose (English law)
Chose , is a term used in common law tradition in different senses. Chose local is a thing annexed to a place, such as a mill. A chose transitory is something movable, that can be carried from place to place...
or land, the donee's title is not complete on the donor's death as the legal title vests in the donor's personal representative
Personal representative
In common law jurisdictions, a personal representative is the generic term for an executor for the estate of a deceased person who left a will or the administrator of an intestate estate. In either case, a surrogate court of competent jurisdiction issues a finding of fact, including that a will...
s. The donee can seek the assistance of the courts to compel the personal representatives to do whatever is necessary to perfect
Perfection (law)
In law, perfection relates to the additional steps required to be taken in relation to a security interest in order to make it effective against third parties and/or to retain its effectiveness in the event of default by the grantor of the security interest...
the donee's title, and this is one of relatively few exceptions to the equitable maxim
Maxims of equity
The maxims of equity evolved, in Latin and eventually translated into English, as the principles applied by courts of equity in deciding cases before them.Among the traditional maxims are:-Equity regards done what ought to be done:...
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 CJCharles Russell, Baron Russell of Killowen
Charles Arthur Russell, Baron Russell of Killowen, GCMG, PC, was an Irish statesman of the 19th century, and Lord Chief Justice of England and Wales.-Early life:...
in Cain v Moon [1896] 2 QB 283:
- the gift must have been made in contemplation of, though not necessarily expectation, of death;
- the subject matter of the gift must have been delivered to the donee; and
- 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.
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, or possibly the contemplation of active service in war. 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 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.Antecedent delivery (i.e. delivery that was made before the gift) is also deemed effective for the doctrine to operate.
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."
For land, although it has been judicially doubted whether a donatio mortis causa could be made with respect to land, 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, nor where the intention is to make a future gift. The conditional nature of the gift need not be expressed, but may be implied from the circumstances.Revocation
In addition to the automatic revocation upon the donor's recovery, the donor may revoke expressly, or by recovering dominion over the subject matter. But the donor cannot revoke by will, as the donee's title is complete before the will takes effect. Where the gift is revoked but the title has actually been transferred, the donee holds the subject matter on trustTrust law
In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another...
for the donor. The gift also fails if the donee predeceases the donor.
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 willWill (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
(or a document incorporated by reference
Incorporation by reference
Incorporation by reference is the act of including a second document within another document by only mentioning the second document. This act, if properly done, makes the entire second document a part of the main document...
into a will) that complies with applicable statutory requirements.
Arguably this exception to the Wills Act 1837
Wills Act 1837
The Wills Act 1837 is an Act of the Parliament of the United Kingdom that confirms the power of every adult to dispose of their real and personal property, whether they are the outright owner or a beneficiary under a trust, by will on their death...
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
Law of Property Act 1925
The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
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
Law of Property Act 1925
The Law of Property Act 1925 is a statute of the United Kingdom Parliament. It forms part of an interrelated programme of legisation introduced by Lord Chancellor Lord Birkenhead between 1922 and 1925. The programme was intended to modernise the English law of real property...
s53(2).