LAW

Donatio Mortis Causa ⚰️

If I am on my deathbed, what would happen if I declared that you should be entitled to my house when I have already given it to someone else in my will? This is where the doctrine of donatio mortis causa (deathbed gift) comes in. This doctrine allows for these gifts to essentially override the will, but they do not have to comply with the formality rules in s9 of the Wills Act 1837. Nourse LJ in Sen v Headley [1991] Ch. 425 set out three requirements for a deathbed gift to be valid.

💡 Things to consider

• First, the donor must be contemplating their death when making the gift: There must be a specific impending reason behind this contemplation, i.e. they were suffering from a terminal illness. So, a person that randomly decides to gift you their house once they die will not have actually gifted their house if they were hit by a car the next day. However, this identifiable reason for contemplation of death does not have to be what killed them. This means that a gift from someone with a terminal illness contemplating their death would still be valid if they were hit by a car the next day.

  

• Secondly, the gift must have been made conditionally where it only takes effect once the donor dies: It must be contingent on the donor’s death, so the donor can revoke the gift before they die or if they make a miraculous recovery. Thirdly, dominion of the gift must have been delivered to the donee during the donor’s lifetime. Therefore, there must be a physical delivery of either the property itself or something representing the property, e.g. a key to a lockbox, a car key, documentation showing entitlement, etc.

  

• Does this doctrine do more harm than good?: It allows someone to bypass all formality rules that have been created for property to pass and removes the certainty of wills. A person near to the end of their life will be far more vulnerable, so this doctrine could allow for abuse of this vulnerability. A will requires witnesses and a solicitor, which protects the person making the will and ensures that there are no disagreements over what was said, but donatio mortis causa has no such safeguards. However, a person this close to death may not have the time or the mental energy to go through the formalities required. So, this doctrine may allow them to express their true wishes.

🔎 Find out more

• Law Gazette Article on Donatio Mortis Causa

• ‘Donatio Mortis Causa’ – A deathbed gift

• Journal of South Pacific Law - The Exception is the Law

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