Ordinarily, a Will would govern what happens to assets on a death. Donatio mortis causa is an exception to that rule, which provides a mechanism whereby gifts made in contemplation of death (but conditional on death) are valid and thus do not form part of someone’s estate (which may be a significant disappointment to those beneficiaries named in the Will). The recent English case of Vallee v Birchwood reviewed the circumstances in which donatio mortis causa applies.
This case concerned the gift of a house by a dying father (D) to his adopted daughter (V). Vlived abroad and visited D twice a year. On one visit, D told her he did not expect to live much longer and would probably not be alive when she next visited. Consequently, he told her that he wanted her to have his house when he died; he gave her the title deeds, the key, and some personal belongings.
After D died intestate a few months later, it was discovered that V was not his biological child and not his legal heir. The Treasury Solicitor rejected V’s claim for the house and advertised for potential claimants. Birchwood (B), described by the court as an “heir hunter”, discovered that the deceased had a surviving brother and obtained a power of attorney to administer D’s estate on the brother’s behalf. At first instance, the judge ruled that the house had in fact passed to V under the doctrine of donatio mortis causa and ordered B to pay the costs of the action. B’s appeal was dismissed.
A donatio mortis causa is a gift which remains conditional and only takes effect when the donor dies. If the gift is valid, the subject matter passes to the recipient on death without passing through the deceased’s estate.
There are three requirements for a valid donatio mortis causa:
- The gift must have been made in contemplation of, though not necessarily in 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.
If title to land has not been effectively transferred and not revoked before death, the donor’s personal representatives will hold the property on trust for the donee and can be compelled to transfer it to him. This was the case here.
In his appeal, B contested the first instance court’s findings on the first two requirements. He claimed:
- The four-month gap between the gift and the death was too great for the gift to have been made in contemplation of impending death;
- The property had not been physically delivered to V, nor had she enjoyed any control over it, from the time of the gift to the death.
The appellate court held that it was clear that deceased made the gift because he feared that he was not likely to live until V’s next visit; the focus here was the “contemplation” of death, not a strong “expectation” of it and thus this requirement was met. Further, in giving his daughter the deeds, the deceased effected valid delivery. It was not necessary that she live in the house or exert physical dominion over it. Having possession of the title deeds was sufficient.
Finally, it was justified for B to pay for V’s costs; B took on the venture of disentitling V in an effort to get financial compensation from D’s surviving brother.
Donatio mortis causa
- Only requires a gift to be made in contemplation rather than expectation of death;
- For land transfers, physical dominion over the property is not required. Title deeds are sufficient.
- When one seeks to involve themself in the estate affairs of others for personal financial gain, he can expect to be accountable for costs in the event of a negative judgment.