Deathbed gifts, more formally referred to as donatio mortis causa, are founded on a unique legal doctrine. Such gifts are not testamentary in nature, as they are not formally recorded in the donor’s will. However, such gifts must be made in contemplation of the donor’s impending death, and must also be conditional on the donor’s death, making them distinct from inter vivos gifts.

Despite being two distinct types of gifts, deathbed gifts and inter vivos gifts are similar in that both must actually be delivered in order to be valid. Depending on the circumstances, however, it may not be necessary to physically hand over the subject matter of a gift in order to effect delivery – an alternative method of delivery, such as symbolic delivery or constructive delivery, may also be acceptable. Symbolic delivery refers to a situation where something other than the actual subject-matter of the gift is given to the donee and is intended to represent or be symbolic of the subject-matter of the gift. In comparison, constructive delivery refers to a situation where the donor provides the donee with the means of taking possession of the subject-matter of the gift, such as a key.

While the symbolic delivery and constructive delivery of deathbed gifts has not been addressed in much Canadian case law, it appears that both types of delivery can be used to effect a donatio mortis causa.

Symbolic delivery of a deathbed gift was recently accepted as valid in Leblanc v Robertson-Schultz, 2024 SKKB 174. A farmer at the center of this case began to give his property away after he was diagnosed with cancer and told that he only had months left to live. Less than a month before the farmer died, he told his neighbours that he wanted to give several pieces of farm equipment to them. However, the equipment was never physically delivered; in fact, the farmer instructed the neighbours not to retrieve a number of the items until the snow had melted and the ground had thawed. The farmer did give them manuals for two pieces of equipment though, and also gave them the registration certificate for a water truck and pump.

Unfortunately, most of the gifts in this case failed because they were not delivered by the farmer to his neighbours. However, the court found that giving the manuals and registration certificate constituted symbolic delivery; accordingly, those gifts were valid. The court also held that delivery of the property could be recognized because the farmer “believed he gave up control over these assets and did everything he thought he had to do to vest title in the donee.”

The constructive delivery of deathbed gifts has also been addressed and affirmed in a number of Canadian cases, including Saulnier v. Anderson, 1987 CanLII 5283 (NB KB) and Chauvel v. Adams Estate, 1998 CanLII 3861 (BC SC). While constructive delivery, as previously noted, is often associated with providing a donee with the means of taking possession of the gift, such as a key, the indicia of constructive delivery can also be more subtle, as demonstrated by the court’s decision in Armstrong v. Armstrong, 1998 CanLII 27825 (MB KB), another case involving farming equipment. Two brothers who farmed together co-owned the equipment in this case. After one brother learned that he was terminally ill, the brothers began dividing their partnership assets. The court found that acts of delivery undertaken by the ill brother were sufficient to create a legally binding gift to the surviving brother, even though the farming equipment had not been manually delivered per se. The fact that the ill brother told their accountants that he had gifted the farm equipment to the surviving brother and asked them to make any necessary changes to their income tax returns was interpreted as an indicium of constructive delivery. The court also took note of the fact that the surviving brother did not have to account to the ill brother for his use of the farm equipment after the diagnosis, finding that this also indicated constructive delivery of the gift.

It is also interesting to note that the law governing the delivery of deathbed gifts is more restrictive in England than in Canada. There, the High Court (Chancery Division) noted in Vallee v. Birchwood, [2013] EWHC 1449 that delivery of something symbolic of, but not constituting, the subject matter of a donatio mortis causa, will not do,” although a deathbed gift delivered via constructive delivery, such as delivering “a key which enables the donee to ‘get at’ the subject matter as given,” may be valid.

Thank you for reading today’s post! If you’d like to learn more about deathbed gifts, please see Nana’s Deathbed Gift to You: Is It Valid?, a post that we published on our blog in 2023.