Donatio mortis causa.

 A donatio mortis causa is a gift made by a person during their lifetime that is conditional
upon their death. It is neither inter vivos nor testamentary gift. In the case of Burkley LJ
in Re: Beaumount (1902) 1ch 889 said of dornatio mortis causa. The court said that it
may be said to be of amphibious nature being a gift which is neither entirely inter vivos
nor testamentary. It must be conditional upon the donors death and the gift is delivered
to the donee.
Conditions to be satisfied for a valid donatio mortis causa.
1. It must be a gift in contemplation of death.
_Section 31(a) provides that a gift in contemplation of death would be valid if the
person making the gift is at the contemplating the possibility of his death because of
present illness or imminent danger. In the case of staniland V willott ( 1850)3 Mac and G
664, the court held that the gift must be made in contemplation of the approach of
death from existing decease or other impending peril, but not necessarily expectation of
immediate death. It is generally irrelevant that the donor dies from some cause other
than the one within their contemplation as long as the condition from which the
deceased thought he was dying continued thought he was dying continued up to the
date of the donors death.
_The condition that the gift made in contemplation of death cannot be granted where
the donor contemplates their own death by suicide. Section 31( c ) provides that no gift
made in contemplation of death shall be valid if the death is caused by suicide. In Agnew
V Belfast Banking Company and in addition, held that the donation failed on the ground
of public policy. The case no longer became valid following the enactment of the suicide
Act of 1961.
2. It must be conditional upon donors death
 If the donor does not die, the gift will not take effect and the donor will be entitled to
recover possession of the property from the donee, as a gift must be conditional upon
the death of the donor. Where the gift is made in writing as opposed to orally, it is
presumed by the court that the gift is not donatio mortis causa ,but either an attempted
lifetime gift.
 An oral will is not usually made in contemplation of death.

In the case of "Re Craven's Estate." (1937), the court emphasized that for a gift to be
considered a donatio mortis causa, it must be made in contemplation of the donors
impending death and the intended transfer of property should take effect only upon the
donors death.
3. It must be delivered to the donee.

 The donor must have handed over to the donee or his agent the subject matter of the
gift or the means of controlling it. The donor must have parted possession with or
parted with dominion over the subject matter of the gift. Section 31 (c) of the act states
that a gift in contemplation of death would be valid if there is delivery to the intended
beneficiary of the possession of the property.
 In Wildish V Fowler (1892) 8 TLR 457 a land lady was handed a property by her sick
tenant with instructions " take care of this" it was held by the court that there had been
no donatio mortis causa of the property as the donor had not parted with the dominion
over the property. The property was delivered merely for the purpose of safe custody.
4. It must be capable of making the subject matter of a dornatio mortis causa.
 The property, the subject of the gift, should be capable of being the subject matter
of such a gift. It should be capable of being donated. Section 31 ( b) of the Act
provides that a gift in contemplation of death would be valid if a gift in
contemplation of death would be valid if a person gives movable property that he
could otherwise dispose of by will. The one that cannot be disposed off by will
cannot be donated. A testator can only dispose off the free property by will
therefore only free property can be the subject of donation.
 In Sen v Headly ( 1991) This case affirmed that the subject matter of a donatio
mortis causa must be capable of being the subject of a gift emphasizing that the
intended gift must be specific and identifiable.
5.Donee must survive the donor.
 The gift is not to be effective where the donee predeceases the donor. Section
31(f) provides that the gift would be valid if the donee survives the person who
made the gift to him. If the intended donee predeceases the donor, his estate
would have no cause of action against the estate of the donor.
 In the case of Birt v Birt ( 1863) the court established the principle that for a valid
dornatio mortis causa, it is essential for the donee to survive the donor. The
court emphasized the importance of the condition of survivorship to ensure that
the intended gift takes effect only if the specific circumstances leading to the
donatio mortis causa actually occur.
Conditional wills and joint wills
1.conditional wills.
 This refers to a will intended to operate only upon the happening of some
event specified in the will. If the event fails to occur, the will would be
ineffective, for example a testator providing that his will operate only if
he dies on a dangerous trip which he is about to undertake. It is
sometimes difficult to decide whether the danger to be faced is marely
 the motive for making the will. If it is a motive, the will would be
effective, but if it is precondition it would be ineffective.
 In Re spratts Goods (1897) p 28 an army officer serving in the newzealand
during the Mario war made a privileged will. The same took the form of a
letter to his son leaving everything to him should anything happen to the
officer. He did not die in the war but he lived for 32 years without making
a new will. The court held that the privileged will was admissible to
probate and the son was entitled to take all his fathers estate.
2. Joint wills
 It is created where two or more persons expresses their wishes upon death in one
document. The joint will take effect as the separate wills of the parties who made it. For
example a husband and wife could make a joint will. If the wife dies first, it would be
admitted to probate as the wife's will in the first instance, then when the husband dies,
it would be admitted to probate as the will of the husband.
 In the case of Nevada National Bank V Frey ( 1972) the court emphasized the
importance of clear and enequivocal language in joint wills to avoid any ambiguity in
interpreting the testators intentions.

How to prove that gift in contemplation of death is a will.

 Proving that a gift in contemplation of death is a will often involves demonstrating the
testators intent. This can be done by providing evidence such as statements , actions or
circumstances that show the donors clear intention for the gift to serve as a will
substitute. Its crucial to establish that the donor had a sense of impending death and
intended the transfer to function as a disposition of their property.
 Documentation, witness testimonies and any written or verbal expressions of the
donor's wishes can be valuable in esbalishing the case. Legal advice is recommended for
specific guidance based on jurisdiction and the detail of the situation

in the case of Causon V Sparks ( 1983), the court emphasized the donor's intent and considered
sorrounding the gift, such as the donors health and the timing in relation to their death.keep in
mind that legal principles can vary by jurisdiction and its crucial to consult relevant cases in
your specific jurisdiction.