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EVERYDAY LAW: Transfer of property before death

Cecil McCArthy

EVERYDAY LAW: Transfer of property before death

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Last Sunday I had the honour of delivering the Sixth Annual Ermine Holmes Lecture on the topic: Your Property And You – Making Sure Your Property Goes Where You Intend. Today and next week I will share with readers two of the areas discussed in my lecture.
The area chosen for this week’s article is the little-known and seldom discussed topic of donatio mortis causa.
The doctrine of donatio mortis causa is one of the anomalies of the law.  It is an exception to the rule that a person can only make a disposition of property to take effect on death if he makes a will.
A donatio mortis causa is a transfer of property made in contemplation or anticipation of the death of the maker.
It may be described as an inter vivos gift which is conditional on death.
There are four requirements which must be satisfied if a donatio mortis causa is to be valid.
1. The gift must be made in contemplation of death. It is not sufficient that the donor made the gift because he or she was old. For example, the donor may make the gift if he or she was undergoing a serious operation or embarking on a dangerous military expedition. It is irrelevant that death actually occurred from a cause not contemplated, for example, an accident.
2. The gift must be conditional on death. Therefore, if the donor recovers from the contemplated cause of death, the gift will not take effect and the donor can again assume possession of the property.
It should be noted that if there are formal requirements needed to complete a transfer of the property the donee of the gift can compel the personal representative to complete the transfer.
3. The donor must part with dominion over the property prior to death. This means that the donor must deliver to the donee or his agent the subject matter of the gift or the means of obtaining it. An example of the latter would be the handing over of the keys to a car.
4. The subject matter of the gift must be capable of passing as a valid donatio martis causa. Most personal property is capable of transfer by this means. There was doubt, as to whether real property could pass by donatio mortis causa.
However in the English case of Sen vs Headley (1991) the Court of Appeal held that land is capable of passing by donatio mortis causa.
In that case the key to a locked box which contained title deeds to unregistered land was handed over to the donee of the gift.
The Court of Appeal held that the gift of the keys was an effective delivery of the title deeds for the purposes of the doctrine of donatio mortis causa.
In rejecting the view that the doctrine did not apply to land, Nourse L. J. commented: “Let it be agreed that the doctrine is anomalous. Anomalies do not justify anomalous exceptions. A donatio mortis causa of land is neither more or less anomalous than any other.
Every such gift is a circumvention of the Wills Act 1837. Why should the additional statutory formalities for the creation and transmission of interests in land be regarded as some larger obstacle?”
Where land is the subject of a donatio mortis causa, the personal representative of the deceased becomes a trustee of the land for the donee of the gift.