Donatio Mortis Causa (DMC) refers to a gift made in contemplation of imminent death. To be valid, a DMC must: be made in contemplation of death, intended to take effect upon death (revocable if donor recovers), involve delivery of the subject matter to the donee, and the subject matter must be capable of passing. Valid subjects of a DMC include bank accounts, unregistered real property, safety deposit box contents, and personal effects, though checks and registered land cannot be subjects of a DMC.

1. Donatio Mortis
Causa
(DMC)

2. Definition
• DMC is a latin term (deathbed gift)
• It means a gift on the occasion of death
• This is a gift that the donor makes when
he or she is contemplating the prospect
of his or her imminent, though not
necessarily certain, death.

3. DMC Inter vivos gift
- a gift that the donor makes when
he or she is contemplating the
prospect of his or her imminent,
though not necessarily certain,
death.
- The gift is revocable, where it will
revert to the donor if the donor
recover
- a voluntary and gratuitous transfer
of property while the donor is still
alive and not in expectation of
death
- the donor no longer has any rights
to the property, and cannot get it
back without the permission of the
donee
DMC Testamentary gift
- not made by will - made by will : procedures
under Wills Act 1959 are
required to be comply with

4. History of DMC
• originated in Roman law where it appeared to
be the product of attempts to avoid the
technical or formal elements of succession
law.
• The Roman law permitted this transactions
between husband and wife because these
were gifts conferred during the course of a
valid marriage.

5. Elements of DMC
4 conditions need to be fulfilled in order
to create an effective DMC:
a) It must be made in contemplation of
death.
b) It must be made conditional on death.
c) There must be delivery of the subject
matter of the gift.
d) The subject matter is capable of
passing.

6. (a) Must be made upon
contemplation of death (illness)
• the gift must be made upon contemplation of
death specifically rather than merely reflecting
that we all must die some day.
• The test here is subjective and the court may
decide this question by having regard to the
surrounding circumstances such as the
injuries, or illness of the donor, or the fact that
the donor was a patient in a hospital or etc.

7. Wilkes v Allington
• the donor was suffering from an incurable
disease (cancer) in 1922. Therefore, he made
a several incomplete gifts to his nieces. In
January 1928, after coming home from a
market by a bus, he caught a chill and died of
(pneumonia).
• Held : there was a valid donatio mortis causa
eventhough the precise cause death was
different to the contemplated cause.

8. Thompson v Mechan
• The deceased, who was very apprehensive of
flying, delivered the keys of his car and the
vehicle permit to the plaintiff shortly before
departing on a regular flight to Winnipeg. The
deceased arrived safely, but died suddenly from a
coronary thrombosis two days later whilst still in
Winnipeg.
• Held : the risk of normal air travel did not satisfy
the requirement of contemplation of death. It is
not sufficient merely to recognise that death will
occur sometime.

9. Question : DMC when suicide?
• The answer used to be DMC was not valid in
the case of suicide.
• Agnew v Belfast Banking Co and Re Dudman,
Held : that a donatio mortis causa was not
possible as that would be against public policy
and its an offence.
• However, in 1961 suicide is no longer a crime
(Suicide Act 1961)
• Thus, DMC is valid in a case of suicide.

10. (b) Must be intended upon death
(revocable)
• the gift must be intended upon death
which means the intention of the donor
is dependent on death.
• If the donor recovers, the gift is
revocable.
• It will not be a valid DMC if the gift is
intended to be an immediate gift.

11. Tate v Hibert
• the deceased attempted to make an
immediate and unconditional gifts to the
nieces.
• The court ruled that an absolute gift to take
effect immediately cannot be considered as
donatio mortis causa.

12. (c) Must be delivery of the subject
matter to the donee (part dominion)
• there must be delivery of the subject matter
to the donee and intention to part dominion
over it.
• The donor must either hand over the thing to
be given, or the documents which constitute
the essential evidence of title, with the
intention of surrendering dominion over the
thing and not merely for safe keeping.
• Eg; key of the car, name title for the land and
etc

13. Woodard v Woodard (1995)
• The father transferred a set of keys to his son. But
the father retained a set of keys to himself too.
• The court held that, the important point to consider
was why the keys were retained. If the donor
intended to keep the keys so that he can still used
the car, then the third element was not fulfilled.
• In this case, there was a valid DMC as the third
element was satisfied when the are evidence show
that the donor had said to his son, “you can keep the
keys, I won’t be driving anymore”.

14. (d) The subject matter is capable of
passing.
 Stock & shares
 Cheques
 Bank accounts
 Real property ( chattels/ lands & etc..)
 Safety Deposit Box
 Furniture & Personal Effects

15. (a) Cheques
• The donor’s cheques is a revocable order to
the bank to pay the person in whose favour
the cheque is drawn and is incapable of being
the subject matter of a DMC.
• Payment of the cheque may be revoked during
the lifetime of the donor and is revoked on
death

16. Re Beaumont
• Mr Beaumont who was very ill and in fear of impending
death, on 19 February 1901 drew a cheque for 300 in favour
of Mrs Ewbank, to whom it was delivered.
• Mrs E endorsed the cheque and on 23 February it was
presented for payment at Mr B’s bank, where his account was
overdrawn. The bank manager refused payment, stating that
Mr. B’s alleged signature was unlike his ordinary signature and
required confirmation of the genuineness of the signature.
• Mr B died on 25 February 1901 without the cheque having
been cashed. Mrs E claimed that Mr B’s personal
representatives ought to be compelled to complete her title
on the ground of valid DMC.
• The court held that the cheque was a revocable mandate
which was not a proper subject of a DMC.

17. (b) Bank accounts
RAJALAKSHMI v. LIEW KIM YING CLJ 1987
- The plaintiff was the sole administratrix of the estate of K.
Sathivelu (deceased). He prayed for a declaration that the
sum of RM80,000 withdrawn by the defendants from 3 fixed
deposit accounts, belongs to the estate as the defendants
hold the money in trust for the estate.
- Based on evidence, the Court was more than satisfied that the
defendants had rebutted the presumption that they held the
moneys on trust for the deceased's estate and from this
finding, the RM80,000 placed by the deceased in the 3 joint
fixed deposit accounts passed to them by way of
a donatio mortis causa.

18. (c) Real property
• For many years it was assumed, on the basis
of 19th century dicta, that land could not be
the subject of a donatio mortis causa... In
Duffield v Elwes, the court ruled that the
registered land cannot be the subject of DMC
• However…in Sen v Hedley, the court held that
land can be the subject of DMC.But its only
restricted to unregistered land.

19. Sen v Hedley
• Mr Hewett and Mrs Sen was husband and wife. In
1986 he was taken terminally ill, was admitted to
hospital and knew that he did not had a long
time.
• In the event of his death, he told his wife, ‘The
house is yours, Margaret. You have the keys. They
are in your bag. The deeds are in the steel box.’
Then he died intestate.
• The next of kin of Mr Hewitt claimed for the
property. The court gave judgment to the next of
kin of Mr. Hewitt

20. • Then Mrs Sen appealed to the CoA.
• The CoA ruled that in doing so (giving the key
to the steel box containing the title deeds of
the deceased) , the deceased had indisputably
made a gift of the house to the plaintiff in
contemplation of his death to be effective on
his death and his parting with the dominion
over the title deeds to the house was
sufficient to satisfy the third of the
requirements necessary to establish a valid
donatio mortis causa.

21. (d) Safety Deposit Box
Costiniuk v. British Columbia (Official Administrator),
• The deceased died intestate with no next of kin. During the last few years
of her life, the deceased had lived alone and was frequently ill. The
plaintiffs, who had known her for many years, had greatly assisted her.The
day before she died, in the presence of medical technicians, the deceased
told the plaintiffs they were to have everything in the boxes. The safety
deposit box contained stamps worth $2300, an RRSP receipt, and the state
of title certificate for her home.
• The court found that handing over the keys to the safety deposit boxes did
constitute effective delivery because the keys were essential to get
possession of the contents of the boxes. Thus the contents of the box
passed to the plaintiff as a valid donatio mortis causa. Only the stamps
passed in title to the plaintiffs.

22. (e) Furniture & Personal Effects
Re Rosemergey
• the deceased had employed her housekeeper for
many years. When she became ill and learned
that her condition was terminal, the deceased
had signed and delivered a paper giving her
housekeeper all the furniture and personal
effects in the house.
• The court held that there was a valid gift in
contemplation of death even though there was
no actual physical change of possession

23. (f) Stock & shares
• It is often said that there cannot be a DMC of
stocks and shares. This view is usually based on
Ward v Turner. In this case the court held that
there was no effective donatio mortis causa over
some South Sea annuities. It is possible that the
decision was based on an inadequate delivery.
• But in Staniland v Willott, it was held that shares
in a public company can be subject to a donatio
mortis causa.
• There remains some doubt in this area.

24. Conclusion
Exceptions to the rule of equity ‘equity
will not assist volunteer’ & ‘ equity will
not perfect an imperfect gift’ :
• Rule in Strong v Bird
• DMC
• Proprietary estoppel