| Donatio Mortis Causa |
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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,''Duffield v Elwes'' (1827) 1 Bli(NS) 497; ''Re Lillingston'' {Link without Title} 2 All ER 184 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'' {Link without Title} 2 QB 283: # the gift must have been made in contemplation of, though not necessarily expectation, of death;See also, ''Wilkes v Allington'' {Link without Title} 2 Ch 104 # the subject matter of the gift must have been delivered to the donee;''Cain v Moon'' {Link without Title} 2 QB 283 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.''Wilkes v Allington'' {Link without Title} 2 Ch 104 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,''cf. Thompson v Mechan'' OR 357, where it was held that the ordinary hazards of air travel were insufficient. or possibly the contemplation of active service in war.''Agnew v Belfast Banking Co'' [1896 2 IR 204 at 221 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''Ward v Turner'' (1752) 2 Ves Sen 431 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.''Hawkins v Blewitt'' (1798) 2 Esp 663 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."''Birch v Treasury Solicitor'' {Link without Title} Ch 298 at 311. For land, although it has been judicially doubted whether a ''donatio mortis causa'' could be made with respect to land,''Duffield v Elwes'' (1827) 1 Bli (NS) 497 in ''Sen v Headley'' {Link without Title} 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,''Edwards v Jones'' (1836) 1 My & Cr 226 nor where the intention is to make a future gift.''Solicitor to the Treasury v Lewis'' 2 Ch 812 The conditional nature of the gift need not be expressed, but may be implied from the circumstances.''Re Lillingston'' [1952 2 All ER 184 REVOCATION In addition to the automatic revocation upon the donor's recovery,''Staniland v Willott'' (1852) 3 Mac & G 664 the donor may revoke expressly, or by recovering dominion over the subject matter.''Bunn v Markham'' (1816) 7 Taunt 224 But the donor cannot revoke by will, as the donee's title is complete before the will takes effect.''Jones v Selby'' (1710) Prec Ch 300 at 303 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.''Tate v Hilbert'' (1793) 2 Ves 111 at 120 ANACHRONISM ''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.The other main exception, also an anachronism, is that of Secret Trust s. FOOTNOTES |
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