Death Bed Gifts
Donatio Mortis Causa
Introduction
● As already examined, for a trust to be valid and enforceable, generally
it must be fully constituted. The death bed gift is an exception to this
rule and the rule that equity will not perfect an imperfect gift in
favour of a volunteer.
● The death bed gift is best explained as one given in contemplation of
death, “amphibious” in nature, being neither entirely ‘inter vivos’ nor
entirely testamentary.
● It is an act ‘inter vivos’ by which the donee is to have the absolute
title to the subject of the gift, not at once, but if the donor dies. If the
donor dies, the title becomes absolute, not under but as against his
executor.
● Re Beaumont [1902] 1 Ch 889 → in order to make the gift valid, it
must be made to take effect on the donor’s death.
● The test of capacity to create a valid ‘donatio mortis causa’ is the
same as that for ‘inter vivos’ gifts, and the issue of capacity is rarely
an issue in these types of cases, although the donor is close to death.
● Agnew v Belfast Bank Company [1896] 2 IR 304 → it was held that if
a donor was insane at the time of the gift, then it would be invalid.
● Re Beaney [1978] 1 WLR 770 → the court determined that the
necessary degree of competence required would depend on the
facts of the particular transaction ranging from low (where the gift
was trivial) to high (when it was comprised of the entire estate).
Whether the donor is required to remain competent following the
delivery is open to debate.
__________
Requirements
● The basic requirements have remained virtually unaltered since the
middle of the eighteenth century and are, at this stage, established
beyond dispute.
● Cain v Moon [1896] 2 QB 283 → the most classic synopsis of these
requirements is laid down by Lord Russell.
● Re Craven’s Estate [1937] Ch 423 → a more recent iteration of the
requirements.
- Farwell J → “the conditions which are essential to a ‘donatio
mortis causa’ are, firstly, a clear intention to give, but to give
only if the donor dies, whereas if the donor does not die then
the gift is not to take effect and the donor is to have back the
subject matter of the gift. Secondly, the gift must be made in
contemplation of death, which is meant not the possibility of
death at some time or other, but death within the near future,
what may be called death for some reason believed to be
1
, impending. Third, the donor must part with dominion over the
subject matter of the ‘donatio mortis causa’.”
__________
First Requirement - Contemplation of Death
● This requirement is a distinctive feature of a ‘donatio mortis causa’.
● Donatio mortis causa → “a gift by reason”, “because of” or “on
account of” death.
● King v Chiltern Dog Rescue [2015] EWCA Civ 581 → the law had
taken a somewhat relaxed approach to this aspect, but the most
recent Court of Appeal decision takes a stricter view, and it is worth
examining the development of the law in relation to this
requirement. The requirement has been explained in a number of
early cases as “a gift made in contemplation of the convinced
approach of death”, which meant “not the possibility of death some
time or other, but death within the near future.”
● Cain [1896] → “the gift must be made in contemplation though not
necessary in expectation of death.” (Russell CJ)
● Whether the test for contemplation of death is subjective or
objective has been the matter of some contention.
● Vallee v Birchwood [2013] EWHC 1449 → Pawloski stated that the
test is subjective and this approach was favoured in this case.
● King [2015] → the subjective test was considered.
- Jackson LJ → “Vallee [2013] was wrongly decided on this issue.
I decline to follow the approach adopted in that case.”
● Vallee [2013] → inadvertently or not, extended the doctrine of
‘donatio mortis causa’ by creating an extremely low threshold.
- King [2015] → the Court of Appeal, although criticised for its
strict objective approach, is arguably merely bringing the
‘donatio moris causa’ back to its original underpinnings. The
purpose of the death bed gift is that it operates in
circumstances to give effect to the wishes of a dying person
where they cannot, due to their impending death, either
create a valid ‘inter vivos’ gift or testamentary transfer. Bearing
in mind that, if successful, the death bed gift will take
precedence over any previous written will, it is not
unreasonable for the court to require an objectively verifiable
knowledge of impending death.
● One matter of contention in relation to this issue is that of suicide.
● Agnew [1896] → the first reported case to deal with the issue of
suicide death bed gifts.
- The deceased gave her sister a bank deposit receipt in
contemplation of suicide and, indeed, took her own life several
days later.
- Held → the Court of Appeal found this gift to be invalid and that
it is against public policy to uphold a gift which is intended to
take effect by means of self-destruction.
2
Donatio Mortis Causa
Introduction
● As already examined, for a trust to be valid and enforceable, generally
it must be fully constituted. The death bed gift is an exception to this
rule and the rule that equity will not perfect an imperfect gift in
favour of a volunteer.
● The death bed gift is best explained as one given in contemplation of
death, “amphibious” in nature, being neither entirely ‘inter vivos’ nor
entirely testamentary.
● It is an act ‘inter vivos’ by which the donee is to have the absolute
title to the subject of the gift, not at once, but if the donor dies. If the
donor dies, the title becomes absolute, not under but as against his
executor.
● Re Beaumont [1902] 1 Ch 889 → in order to make the gift valid, it
must be made to take effect on the donor’s death.
● The test of capacity to create a valid ‘donatio mortis causa’ is the
same as that for ‘inter vivos’ gifts, and the issue of capacity is rarely
an issue in these types of cases, although the donor is close to death.
● Agnew v Belfast Bank Company [1896] 2 IR 304 → it was held that if
a donor was insane at the time of the gift, then it would be invalid.
● Re Beaney [1978] 1 WLR 770 → the court determined that the
necessary degree of competence required would depend on the
facts of the particular transaction ranging from low (where the gift
was trivial) to high (when it was comprised of the entire estate).
Whether the donor is required to remain competent following the
delivery is open to debate.
__________
Requirements
● The basic requirements have remained virtually unaltered since the
middle of the eighteenth century and are, at this stage, established
beyond dispute.
● Cain v Moon [1896] 2 QB 283 → the most classic synopsis of these
requirements is laid down by Lord Russell.
● Re Craven’s Estate [1937] Ch 423 → a more recent iteration of the
requirements.
- Farwell J → “the conditions which are essential to a ‘donatio
mortis causa’ are, firstly, a clear intention to give, but to give
only if the donor dies, whereas if the donor does not die then
the gift is not to take effect and the donor is to have back the
subject matter of the gift. Secondly, the gift must be made in
contemplation of death, which is meant not the possibility of
death at some time or other, but death within the near future,
what may be called death for some reason believed to be
1
, impending. Third, the donor must part with dominion over the
subject matter of the ‘donatio mortis causa’.”
__________
First Requirement - Contemplation of Death
● This requirement is a distinctive feature of a ‘donatio mortis causa’.
● Donatio mortis causa → “a gift by reason”, “because of” or “on
account of” death.
● King v Chiltern Dog Rescue [2015] EWCA Civ 581 → the law had
taken a somewhat relaxed approach to this aspect, but the most
recent Court of Appeal decision takes a stricter view, and it is worth
examining the development of the law in relation to this
requirement. The requirement has been explained in a number of
early cases as “a gift made in contemplation of the convinced
approach of death”, which meant “not the possibility of death some
time or other, but death within the near future.”
● Cain [1896] → “the gift must be made in contemplation though not
necessary in expectation of death.” (Russell CJ)
● Whether the test for contemplation of death is subjective or
objective has been the matter of some contention.
● Vallee v Birchwood [2013] EWHC 1449 → Pawloski stated that the
test is subjective and this approach was favoured in this case.
● King [2015] → the subjective test was considered.
- Jackson LJ → “Vallee [2013] was wrongly decided on this issue.
I decline to follow the approach adopted in that case.”
● Vallee [2013] → inadvertently or not, extended the doctrine of
‘donatio mortis causa’ by creating an extremely low threshold.
- King [2015] → the Court of Appeal, although criticised for its
strict objective approach, is arguably merely bringing the
‘donatio moris causa’ back to its original underpinnings. The
purpose of the death bed gift is that it operates in
circumstances to give effect to the wishes of a dying person
where they cannot, due to their impending death, either
create a valid ‘inter vivos’ gift or testamentary transfer. Bearing
in mind that, if successful, the death bed gift will take
precedence over any previous written will, it is not
unreasonable for the court to require an objectively verifiable
knowledge of impending death.
● One matter of contention in relation to this issue is that of suicide.
● Agnew [1896] → the first reported case to deal with the issue of
suicide death bed gifts.
- The deceased gave her sister a bank deposit receipt in
contemplation of suicide and, indeed, took her own life several
days later.
- Held → the Court of Appeal found this gift to be invalid and that
it is against public policy to uphold a gift which is intended to
take effect by means of self-destruction.
2
