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In England and Wales, the usual position for a person to make gifts would be to include the same in their will (subject to the strict requirements as regards the formalities set out in the Wills Act) to pass upon their death.  However, this is not always possible and subject to strict requirements there are circumstances where exceptions can be made.  In this article, I explore what is meant by the Latin phrase “donationes mortis causa” which translates broadly as gifts in contemplation of death, and the requirements necessary for such gifts to be valid.

 

What are the requirements?

In Sen V Headley [1991] (“Sen”) Norse LJ set out requirements necessary for a gift to qualify as a valid donatio mortis causa, as follows:

  1. The gift must be made by the donor (the person making the gift) in contemplation, although not necessarily in expectation, of his or her impending death;
  2. The gift must be made on the condition that it is to be absolute and perfected only on the donor’s death;
  3. The donor must part with the gift or deliver it in some way to the donee (the person receiving the gift) with the subject matter of the gift being capable of being given away in this manner.

 

Contemplation of death

This requirement will only be satisfied if the donor contemplates death in the near, but not imminent future, at the time the gift is made.  Whilst the contemplation must therefore be more than a general acknowledgement of death in the future, the donor must not contemplate immediate death or be on his deathbed when the gift is made.

In Wilkes V Allington [1931], the donor knew he had cancer.  He did not know how long he had left to live but at the time he made the gift he considered himself to be a “doomed man”.  A month later he died from pneumonia, an unrelated illness.  The court held that the requirement for the gift being made in contemplation of death had been satisfied and the gift was therefore valid because it was not conditional on his death from the particular cause contemplated by him - it does not matter whether the cause of death that the donor anticipates is actually what kills them.

Conversely, in Keeling V Keeling [2017], the court held that there was no donatio mortis causa because the requirement had not been satisfied in relation to the donor’s contemplation of death.  The donee alleged that a valid gift had been made because the donor suffered a heart attack and told him that she wanted him to have the house.  The donor delivered the keys to the house to the donee as well as the title deeds thereto.  However, this had occurred in May 2012 when she had her first heart attack.  She survived for a further six months.  The judge considered that she could not, in May 2012, to have good reason to anticipate death from an identified cause.

 

Conditional and absolute on death

The donor must intend the gift to take effect and become absolute only upon their death.  The gift is therefore capable of being revoked at any time before death.

In Gardner V Parker [1818], the donor, who was seriously ill and bedridden, gave the donee a bond for £1,800 saying “there, take that and keep it”.  Two days later, the donor died.  The court held, inferred from the circumstances, that it was a valid donatio mortis causa.

 

Delivery up of the gift

Parting with possession of the subject matter of the gift involves both the donor’s mental intention to part with control and sufficient physical delivery or transfer of the subject matter of the donatio mortis causa or something representing it to the donee.  During their lifetime, the donor must transfer the physical subject matter of the gift or something representing it to the donee.  The delivery can be done by the donor or an agent on his or her behalf.  Similarly, the gift could be delivered to an agent of the donee. 

In Cain V Moon [1896], the donor delivered a deposit note to the donee, for safe keeping.  Two years later, when the donor was seriously ill, she told the donor “the bank note is for you if I die”.  The court held that this was a valid donatio mortis causa as it was not necessary for the donee to hand back the bank note and for the donor to re-deliver it at the time she expressed her intention to make the gift.

Conversely, in Reddel V Dobree [1834], the donor was in declining health.  He delivered a cash box to the donee and told her it contained money for her but that he wanted her to return the box to him every three months whilst he lived and that upon his death, his son would give her the key to the box.  The court held that there was no donatio mortis causa as the donor intended to retain dominion over the contents of the box during his lifetime, he had control of the key and had reserved to himself, in advance, the right to deal with the contents.

Land can be the subject matter of a valid donatio causa mortis.  In the Sen case, the donor told the donee, whilst she was visiting him in hospital, that his house and its contents were hers.  He went on tell her that the deeds to the house were in a steel box and in respect of which the donee had a key, albeit unbeknown to her as the donor had slipped the same into her handbag without her knowledge.  Nonetheless, the court of appeal confirmed that this was a valid donatio mortis causa.

Conversely, in King V Dubrey [2016], the deceased had made a will in 1998 leaving most of her estate, including her house, to charity.  In 2017 new nephew came to live with her as her carer.  More than four months before her death, when she was frail but in reasonable health, she gave the title deeds of her house to her nephew saying “this will be yours when I go”.  After she died, the nephew claimed against the executors of her 1998 that there was a valid donatio mortis causa in respect of the house.  Initially, his claim succeeded but the decision was reversed upon appeal, the court of appeal holding that at the time of handing over of the title deeds, the donor was then contemplating her impending death.

 

Revocation of a donatio mortis causa

As a donor must intend the gift to take effect and become absolute only upon their death, a donatio mortis causa is capable of being revoked at any time before death.  Any gift is also automatically revoked by way of insolvency and may also be revoked by insanity.

Provided no revocation has occurred during the donor’s lifetime, however, the gift will become complete and valid upon death.  It is treated as a lifetime gift which gives the donee absolute title.  As such, the subject matter of the gift will fall outside of the donor’s estate upon death.

In Valley V Birchwood (Re Bogusz Deceased) [2013], the donee was the adopted daughter of the donor.  Shortly before he died, she visited him and said she would return again at Christmas.  The donor told her that he did not think he would live for much longer and expressed a wish for her to have his house, which formed the bulk of his estate, when he died.  He gave her the title deeds and a key to the house.

When the donor died almost three months later, she claimed that the property had been gifted to her.  He died intestate but a genealogist found that the donor had a surviving brother who applied for letters of administration to administer the estate.  The court made a declaration that the gift was a donatio mortis causa and that accordingly, the brother was holding the property on trust for the donee.  The court of appeal upheld the decision.

 

Conclusion

Whilst the courts have stressed that it will not allow donatio mortis causa to be used as a device in order to validate ineffective wills and thus, it remains preferable for a testator to ensure that any gifts are set out in a validly executed will, these cases demonstrate that the court will uphold gifts made in contemplation provided that all the necessary requirements have been complied with.

 

How we can help

If you think that you may be the recipient of a donatio mortis causa or think you have cause to dispute a donee’s claim for such a gift and wish to receive advice in relation to the same, please contact our specialist lawyers in our probate disputes team at [email protected]

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Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

Get in touch

If you have any questions relating to this article or have any legal disputes you would like to discuss, please contact the Dispute Resolution team on [email protected]

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