A gift given on one’s deathbed, otherwise known as a Donatio Mortis Causa, must meet specific criteria to be considered a valid gift. Generally, to be considered a gift at all, the gifting must be completely voluntary, gratuitous and reflect the donor’s liberal intent towards the recipient of the gift. Then, to be deemed a valid deathbed gift, it must have been made, firstly, in contemplation, though not necessarily in expectation, of death; secondly, there must have been delivery to the donee of the subject-matter of the gift; and thirdly, the gift must be made under such circumstances as to be clear that the gift is intended to revert to the donor in case he or she should recover (per Lord Russell of Killowen, C.J. in Cain v. Moon [1896] 2 Q.B. 283, at 286)

Of these three qualifying criteria, the phrase “…. must have been made in contemplation, though not necessarily in expectation, of death” has been very controversial and subjected to various judicial interpretations. Consider, for instance, in Thompson v. Mechan, where the court decided that air travel is not a sufficient peril for the possible application of the law on gifts mortis causa. The donor, who was very apprehensive of flying, delivered the keys of his car and the vehicle permit to the plaintiff as a gift shortly before departing on a regular flight to Winnipeg. Although the donor arrived in Winnipeg safely, he died suddenly two days later from a disease called coronary thrombosis while still in Winnipeg. The court noted that even if air travel was a sufficient peril, the gift would still fail as a deathbed gift because the donor did not die from the peril (air travel) itself or while the original peril was still subsisting. In interpreting the phrase above, the court stated that “it is essential that the gift be made under apprehension of death from some existing disease or other impending peril”.

Other interpretations of the phrase have succeeded in invalidating deathbed gifts. The court in re Eshelman’s Estate (1952), 52 Lanc. Rev. 435, affd., 89 A. 2d 775, 371 Pa. 400 held that “an alleged gift mortis causa made by a person not terrified by the apprehension of any present peril, but moved by the general consideration of human mortality, will be held invalid”. In Woodbridge v. Spooner (1819), 3 B. & Ald, 233, 106 E.R. 647, the court took the view that for a deathbed gift to be valid, the donor does not expect to die, although realizing he is in peril of death is irrelevant.

Although the position in English and Canadian Law is that a donatio mortis causa is only valid when made in contemplation of death from a cause that is proximate, either an existing or immediately impending peril, placing the donor in extremis, the Supreme Court of Canada has yet to weigh in on the jurisprudence in this area of Law.

With the current level of uncertainty regarding the interpretation of a key criteria determining the validity of a deathbed gift, the most practical advice is to avoid deathbed gifts entirely by properly planning one’s estate using estate planning tools that have proven to be effective.

Thank you for reading.

Chigozie Enwereuzo, Student-At-Law