donatio mortis causa

Definition of donatio mortis causa

Further reading

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]

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.[5]

Arguably this exception to the Wills Act 1837 comes about because the gift is inter vivos, ie 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. Cain v Moon [1896] 2 QB 283
4. Wilkes v Allington [1931] 2 Ch 104
5. The other main exception, also an anachronism, is that of secret trusts.