Duhaime's Law Dictionary


Donatio Mortis Causa Definition:

A death-bed gift, made by a dying person, with the intent that the person receiving the gift shall keep the thing if death ensues.

Related Terms: Gift, Gift Over

A death-bed gift, made by a dying person, or othwerwise in contemplation of death, and conditional thereon, with the intent that the person receiving the gift shall have the thing if death ensues.

Hedges v Hedges 1708 Precedents in Chancery 269:

"Where a man lies in extremity, or being surprised with sickness, and not having an opportunity of making his own will; but lest he should die before he could make it, he gives with his own hands his goods to his friends about him: this, if he dies, shall operate as a legacy; but if he recovers, then does the property revert to him".

In Re Bayoff Estate, 2000 SKQB 23, the Court adopted these words:

"A gift is a gratuitous transfer of the ownership of property.  It is usually effected by a transfer during the lifetime of the donor or through the donor’s Will.  A gift that has the same characteristics as an inter vivos gift, but does not take effect until death is known as a donatio mortis causa (gift in contemplation of death).

"There are three essential elements that must be present for a transfer of property to be classified as a donatio mortis causa.... (1) impending death from an existing peril, (2) delivery of the subject matter; and (3) the gift is only to take effect upon death and will revert to the donor  should he/she recover....

"The donor of a donatio mortis causa may revoke the gift at any time before death. The gift is conditional until the donor dies. The essence of a donatio mortis causa is that the property will revert to the donor if the imminent death does not occur."

Such a gift is exempted from the estate of the deceased, as it no longer belongs to the deceased at the moment of death as it is deemed to have been transferred retroactively, from the moment the gift was made.

In many jurisdictions, real property cannot be transferred by these death-bed gifts.

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