Donatio Mortis Causa

Donatio Mortis Causa (a Latin term which means "gift on the occasion of death"), more commonly known as a deathbed gift, is a gift made in contemplation of death and is a historic exception to the requirements of the Wills Act 1837.

Donatio Mortis Causa is considered midway between a lifetime gift and a gift by will - the distinction is that a donatio mortis causa is conditional on death whereas a lifetime gift is effective on delivery.

There are three strict requirements of a valid gift by donatio mortis causa:

The gift must be made in contemplation of impending death

The donor must have contemplated death within the near future at the time of making the gift.  This must be more than a general acknowledgement that he/she will die one day.

The gift must be conditional on death;

The gift must only take effect upon the donor's death.  This means that the donor must have been able to revoke the gift if in fact he/she did not die.  There is no valid Donatio Mortis Causa gift if the donor simply intended to make an outright lifetime gift. 

There must be delivery of the subject matter, or of sufficient evidence of a parting with ownership.

The donor must part with the property or control of the property that he/she is gifting.  It can be by either actual delivery or constructive delivery.  For example, if the donor wishes to gift his/her car, he/she will either have to pass over the car (actual delivery), or provide the keys or the vehicle registration documents (constructive delivery).

Disputes relating to alleged donatio mortis causa are becoming increasingly common, but it is important that the doctrine is not considered as an alternative to preparing a will.  Gifts made by donatio mortis causa are risky - there is usually a lack of evidence of the gift (the only two witnesses commonly being the deceased and the recipient) and the requirements (as set out above) can be very difficult to fulfil to the satisfaction of the courts.

If you would like advice on challenging a will, or indeed on any other inheritance or trust dispute, please contact our Disputed Wills, Trusts and Estates Team by telephone on +44 (0)1884 203 018 or FREEPHONE 0800 0931336, or by email willdisputes@ashfords.co.uk.

Key Contact

Robert Horsey

Partner and Location Head, Tiverton

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+44 (0)800 0931336


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