The law recognizes gifts of property made by a person in contemplation of their imminent death. Such a gift is conditional upon the death of the donor (the person making the gift), upon which the gift will pass to the intended beneficiary rather than to the donor's personal representative(s). In law, such a gift is known as a donatio mortis causa, otherwise known as a deathbed gift.
Requirements for a donatio mortis causa to be valid
As set out in Cain v. Moon (1896) 2 Q.B. 283, which is an English case that was adopted by Canadian courts, the following three requirements must be met for such a gift to be valid in law:
- The gift must have been made in contemplation, though not necessarily in expectation, of death;
- There must have been delivery of the subject matter of the gift to the donee (the intended recipient of the gift); and
- The gift must have been made under such circumstances that show that it may be revoked should the donor recover.
A donatio mortis causa is therefore made by a living donor in contemplation of imminent, though not necessarily certain, death. This possible imminence of death is the motivating factor behind the donor's decision to make the gift.
The necessary formalities required to effect delivery of the gift must have been fully completed for it to be valid. The donee should be able to take possession of the subject property without any encumbrances.
The gift remains revocable up until the donor's death renders it absolute. The gift is automatically revoked as soon as the donor recovers.
Succession Law Reform Act, R.S.O. 1990, c. S.26, Part V
Part V of the Ontario Succession Law Reform Act, R.S.O. 1990, c. S.26 sets out the rules with respect to the support of a deceased person's dependants. As set out at section 72, gifts mortis causa are within the scope of property to be included in the estate for this determination.
Legal disputes
Legal disputes over whether there is a valid donatio mortis causa can arise between the beneficiaries under the deceased's will and the claimant of the purported donatio mortis causa.
A person claiming to be the beneficiary of such a gift has the onus of producing clear and unmistakable proof that the deceased intended to gift the subject property donatio mortis causa.
A note on real property
The weight of judicial opinion in Canada is that real property cannot form the subject of a donatio mortis causa.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.