The doctrine identified by the phrase “donatio mortis causa” dates back to and survived the fall of the Roman Empire. It has been described as an anomaly in English law. This is because a gift that qualifies as a “donatio mortis causa” does not need to be made by will, or to comply with section 52 of the Law of Property Act 1925 (which requires conveyances to be made by deed). Consequently, the doctrine may facilitate abuses that these statutes are designed to prevent.
A “donatio mortis causa” is a gift that remains conditional until the donor dies. It must be made in contemplation, although not necessarily in the expectation, of the donor’s impending death. It is revocable until the donor dies, and will be ineffective if the donee predeceases the donor or if the donor does not die soon enough.
One further condition applies; the donor must deliver the subject matter of the gift, or documents evidencing title to it, to the donee. This means that the donor must part with dominion over – and not just physical possession of – the subject matter of the gift. Before 1991, it was assumed that it was not possible to make a “donatio mortis causa” of land. However, Sen v Headley [1991] Ch 425; [1991] EGCS 23 confirmed otherwise. In that case, the donor informed the donee that his house was hers and placed the keys to the deed-box in her handbag.
King v The Chiltern Dog Rescue [2015] EWCA Civ 581; [2015] PLSCS 175 also concerned the gift of a house. The donor had made a will leaving the bulk of her estate to animal welfare charities. However, her nephew, who lived with and cared for her before her death, claimed that she had subsequently made a “donatio mortis causa” in his favour, passing the bulk of her estate to him (even though he was not named as a beneficiary in her will).
The Court of Appeal noted that a will is there for all to see. By contrast, there may be scope for disagreement about what the deceased said to carers or visitors before dying. In addition, what was actually said may be a less reliable expression of the deceased’s wishes than a carefully drawn will, prepared with the assistance of a solicitor in the absence of the beneficiaries.
In fact, Lord Justice Jackson was mystified as to why the doctrine had survived at all. He stressed the need for the strictest scrutiny of the factual evidence before applying the doctrine, because it is open to abuse, and emphasised that the courts must not allow the doctrine to be used to validate ineffective wills. Furthermore, he considered that it was important to keep the doctrine within proper bounds and to resist the temptation to extend it further.
The court rejected the claim that there had been a “donatio mortis causa” here. There was no evidence of the donor’s impending death and, although she had handed the title deeds to her nephew several months before she died, her behaviour suggested that she intended to change her will, as opposed to making a “donatio mortis causa”. Indeed, she subsequently signed documents stating that the house should pass to her nephew. The documents were ineffective as wills. However, they were also inconsistent with the proposition that she had already disposed of the house by a “donatio mortis causa”.
Allyson Colby is a property law consultant
