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Donatio Mortis Causa' - A Deathbed Gift
Donatio Mortis Causa' - A Deathbed Gift
Legal Articles
The usual position for making gifts to take effect upon a person’s death is for that person to make a will compliant
with section 9 of the Wills Act 1837 (as amended by Section 17 of the Administration of Justice Act 1982).
However, we do not live in an ideal world and sometimes, exceptions are to be made. A donatio mortis causa is an
exception to the usual position whereby a person makes a gift (“the Donor”) to another (“the Donee”) during their
lifetime, but that gift is in contemplation of their death, to take effect in the future and which remains conditional until
the Donor dies. Upon death, the gift becomes absolute.
1. The gift must be made in contemplation, although not necessarily in expectation, of 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. There must be a delivery of the subject matter of the gift or title to it, which amounts to a parting with dominion, possession or control.
Contemplation of death
This requirement will only be satisfied if the Donor contemplates death in the near, but not imminent future, at the time
that the gift is made. The contemplation must therefore be more than a general acknowledgement of death in the
future.
In the historic case of Re Craven’s Estate (No.1) [1937], it was stated that the Donor must contemplate his death, “within
the near future, what may be called death for some reason believed to be impending.” The Donor must not, however,
contemplate immediate death or be on his deathbed when he makes the gift.
In the historic case of Wilkes v Allington [1931], this requirement was satisfied because, at the time of the gift, the donor
knew that he had cancer and believed himself to be a ‘doomed man’: he did not know exactly how long he had to live
but understood that he was likely to die soon. A month later, he died from pneumonia, an unrelated illness. The court
held that the gift was valid because it was not conditional on his death from the particular cause contemplated by him.
It therefore, does not matter whether the cause of death that the Donor anticipates is actually what kills them.
Further, in the recent case of Keeling v Keeling [2017], the Defendant of this matter and the donee, alleged that a valid
donatio mortis causa was made because the donor suffered a heart attack and told him that she wanted him to have
the house. The donor passed the donee the keys and the title deeds to the house. The court decided that there was no
donatio mortis causa because the requirements had not been satisfied in relation to the donor’s contemplation of
death. The judge said, “In May 2012 Ellen [the donor] had just had her first heart attack but was not hospitalised. She
survived a further six months. She did not in, May 2012, "have good reason to anticipate death from an identified cause."
In any event, any "contemplated" death in May did not occur: she recovered, so any gift would have lapsed.".
In the case of Gardner v Parker [1818], the donor, who was seriously ill and confined to a bed, gave the donee a bond for
£1,800 and said, “There, take that and keep it”. The donor died 2 days later, and the court held that it was a valid donatio
mortis causa inferring from the circumstances.
Parting - Intention
In the case of Reddel v Dobree [1834], the alleged Donor, who was in declining health delivered a locked cash box to the
alleged Donee and told her that the box contained money for her, but that he wanted the box from her every 3 months
whilst he lived, and that, at his death, the Donee was to go to his son for the key. 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.
In the case of Re Lillingston [1952] the Donor handed over a packet of jewellery and the key to a box which contained
the key to a safety deposit box, which contained the key to a further safety deposit box. The Donor told the Donee to
find the jewellery in various locations upon her death and the key was hers to keep. This was a valid DMC and providing
that the gift was clear, the number of boxes were irrelevant.
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