What is ‘Donatio Mortis Causa’ and When Is this Deathbed Gift Valid?

Table of Contents

• What is Donatio Mortis Causa?
• What is required for Donatio Mortis Causa to be legitimate?
• Which assets does a Donatio Mortis Causa cover?
• Advantages and risks of deathbed gifting
• Legal framework and case law
• Seeking legal advice on making or challenging a DMC deathbed gift
• Donatio Mortis Causa FAQs

What is Donatio Mortis Causa?

In England and Wales, a Donatio Mortis Causa (DMC) is a legal exception that allows a gift to take effect upon the death of the gift donor without the formalities of a will. While it can provide a solution in urgent situations, its informal nature often leads to contentious probate and disputes.

A Donatio Mortis Causa is often described as a “deathbed gift”, typically arising in urgent situations in which the donor believes there is insufficient time to make or amend a will. As DMCs bypass the formal requirements of the Wills Act 1837, they are frequently the subject of contentious probate disputes.

Key Aspects of a Donatio Mortis Causa

• Contemplation of imminent death: A Donatio Mortis Causa (DMC) is a gift made by a person (the donor) in contemplation of their imminent death, for example due to a terminal illness or a high-risk medical procedure.
• Conditional on death: The gift only takes effect if the donor dies soon after the gift is made. . If the donor survives, or the intended recipient dies first, the gift is invalid.
• Intention and delivery: The donor must intend for the gift to take effect only on death and typically, the donor delivers  the subject matter (or something representing it) to the recipient at the time of making the gift.
• Cause of death is flexible: The actual cause of death does not need to match the anticipated cause. What matters is that death was contemplated as imminent and occurs in a way that is consistent with the donor’s contemplation of imminent death.
• Urgency: DMCs usually arise where the donor has an immediate need to make a specific gift of a key asset of their estate to someone they specifically wish to have it, and where the donor may believe they have insufficient time to prepare or amend a will.
• Exception to the formal will process: A gift made as a legitimate DMC, will take effect to transfer the gift to the donee, on the donor’s death. As such, it is an exception to the legal requirement to comply with the formalities for a valid will under Section 9 of the Wills Act 1837.
• Risk of dispute: The lack of formality does mean that gifts made as a DMC are more open to challenge to their validity after the donor’s death, than a gift made in a will.
• Burden of proof: The donee of a DMC has the burden of proving that the DMC was legitimately made, and that the strict conditions for a valid DMC are satisfied.

Overall, the formal requirements to create valid wills provide greater certainty, so having a practical and comprehensive will should be the priority in estate planning. DMCs can cover extenuating conditions or allow a rapid response to changing life circumstances, but the lack of formality does mean they are vulnerable to challenge.

What is required for a Donatio Mortis Causa deathbed gift to be legitimate?

For a Donatio Mortis Causa to be valid, several strict conditions must be met. These safeguards exist because DMCs fall outside the formal requirements of the Wills Act 1837 and are therefore often subject to dispute.

1. Contemplation of imminent death: the donor must have a reasonable belief that their death is near and does not have sufficient time or capacity to formally create or amend a will. Simply being elderly or generally aware of mortality is not enough to justify a DMC.
2. Conditional nature of the gift: the gift only takes effect if the donor dies as anticipated. The donor can revoke the gift at any time before death, either by choice or by recovery.
3. Delivery or transfer arrangements: The donor must arrange a parting with the gift or provide the means for the recipient to take possession upon death. This applies to both tangible assets and intangible property, and the donor must clearly demonstrate control over the arrangements.
4. Mental capacity: the donor must have the same mental capacity required for making a will and act of their own free will.
5. Clear intention: the donor must make it clear that the gift will pass to the recipient immediately upon their death. This element is often the most contested in disputes over DMCs.

If any of these points are not met, the Donatio Mortis Causa may be challenged through a contentious probate solicitor.

Which assets does a Donatio Mortis Causa cover?

DMCs do not just apply to physical property but can extend into intangible assets. As long as there is sufficient delivery (e.g. handing over the title deeds for land), then there is a valid case for a DMC to be established.

Examples of assets that may be subject to a DMC include:

• Actual property like housing or land
• Money: both physical banknotes and held in bank accounts
• Personal property like vehicles or jewellery
• Stocks or shares in a company

For a DMC to be valid, the donor must part with the asset during their lifetime or provide the recipient with the means to access it. For example, the donor passing on the login credentials for online bank account access, the key to a car or the title deeds to land or property. If the donor does not part with the asset or the means to get access to the asset, then the DMC will fail.

Advantages and risks of deathbed gifting

Advantages

• Flexibility in urgent situations: A DMC can provide a solution when someone is close to death and does not have time to create or amend a will. It allows the donor to gift an asset to a person they feel should have it, even if their existing will does not reflect this.
• Direct transfer of assets: Assets pass directly to the recipient upon the donor’s death, which can avoid the need for probate for those specific items.
• Revocability before death: The donor can change their mind at any time before passing without the formalities required to amend a will. If they survive the anticipated circumstances, the gift simply remains in their legal possession.

Risks

• Higher risk of dispute: DMCs are informal and lack the safeguards of a will, making them vulnerable to contentious probate claims. The absence of formal documentation means evidence often relies on witness testimony, which can be unreliable, especially when the witness is normally the beneficiary.
• Potential for exploitation: Because DMCs are not subject to the same formalities as wills, they can raise concerns about undue influence or coercion. If the gift contradicts the donor’s will, disputes are even more likely.
• Difficulty proving intention and capacity:  Establishing what the donor intended can be challenging, particularly if other beneficiaries believe they were entitled to the asset under the original will. Questions about mental capacity and the circumstances of the gift often lead to uncertainty.
• Not a substitute for a will: A DMC does not replace the legal certainty of a will. Courts are more likely to uphold a properly executed will, especially for significant assets such as property or bank accounts.

Legal framework

A Donatio Mortis Causa is established through case law rather than statute, meaning it is not covered by the Wills Act 1837 or the Law of Property Act 1925. As a result, it does not require a formally executed will with witnesses (as under the Wills Act) or a deed for land transfers (as required by the Law of Property Act) to be valid.

It is also key to mention that evidential standards are very high – a case must bring forward the facts that can be relied upon in court.

Key Donatio Mortis Causa case law

Cain v Moon 1896

This case first established the principles for a valid DMC, particularly regarding delivery of the asset.

A daughter had given her mother a bank deposit note for safekeeping. Two years later, when the daughter became seriously ill and contemplated death, she told her mother “the bank note is for you if I die”.

Although the physical delivery of the banknote occurred two years prior, the court held that there was no need for there to be a re-delivery for the DMC to be valid. What mattered was that the circumstances changed; the mother’s possession shifted from safekeeping to ownership upon her daughter’s death. The donor’s intention was clear and explicit, and thus the gift already in safekeeping could shift to DMC once the intent was communicated.

This case set the standard by confirming three essential criteria:

• Contemplation of death
• Conditional on the donor’s death
• Delivery of the asset

Re Beaumont 1902

Beaumont v Ewbank is another key case law in donatio mortis causa as it affirms that the gift is “amphibious”, being neither “inter-vivos nor a legacy” (1 Ch 889). This essentially means that a DMC is neither a lifetime gift nor a testamentary gift, but somewhere in between.

The background to this case is that Mr. Beaumont was in serious ill health and in expectation of death. He drew a cheque amounting to £300 for his sister, Mrs. Ewbank, and arranged for its delivery to her.

However, as the account was overdrawn and a signature required, the bank manager refused payment. Mr Beaumont died two days after this instruction, meaning the cheque was never cashed and therefore the value was never transferred.

The court ruled that no valid gift had been made due to this set of circumstances. Thus, the physical transfer or effective control of a gift is essential; without it, the DMC fails even if intention is clear.

Re Craven’s Estate 1937

The key outcome of this case was that the condition of the gift must be clear, taking effect only if and when the contemplated death occurs (1 Ch 423).

Mr Craven was seriously ill and wished to make a deathbed gift to a relative. However, Mr Craven had not made arrangements for a will. The key question was whether the gift should take effect immediately or upon the donor’s death as this was not explicit in the intention of the gift.

The DMC in this case failed, with the court holding that the condition of the gift taking effect only upon death, must be made clear for the DMC to be valid. Delivery or transfer was not enough to meet the strict requirements of a DMC – further evidence of conditionality is key.

Sen v Headley 1991

This landmark case confirmed that land can be the subject of a Donatio Mortis Causa, overturning the previous assumption that real property was excluded.

In this case, Headley, who was terminally ill and on his deathbed, handed over the keys to a box containing the title deeds to his house to Sen, his close friend, telling her “The house is yours Margaret, you have the keys, They are in your bag. The deeds are in the steel box”

Although Headley’s estate later disputed the validity of this gift, and the court of first instance found in their favour, (on the basis that there could not be a valid DMC of land), the Court of Appeal upheld the DMC, The appeal judges ruled that the delivery of the keys, granting access to the title deeds, was sufficient to constitute delivery of the property for the purposes of a DMC.

As a result, ownership of the house passed to Sen outside the formal requirements of a will, (and the formal statutory requirements for the transfer of land, which are out of the scope of this summary) The symbolic delivery of real property, such as the keys to title deeds, may suffice in a DMC.

King v Dubrey 2015

This case was taken to the Court of Appeal, which clarified the narrow application of a DMC. In this case, it was established that both the genuine contemplation of death and effective delivery of property is required for a DMC to be valid.

Mr Dubrey was terminally ill and wished to make a deathbed gift of art and money to the intended recipient. Other family members challenged the gift, arguing that conditions for DMC had not been met. The key point of contention was that whilst the intention was clear, the delivery of assets and genuine contemplation of death were questioned.

The attempted DMC was not upheld and the DMC was successfully challenged, particularly because the delivery and control of the assets was insufficient.

Rahman v Hassan 2024

This recent High Court decision is another landmark ruling that sets a modern precedent by recognising digital methods as valid for executing a Donatio Mortis Causa.

The claimant, Masadur Rahman, who had been caring for Mr Al Mahmood, argued that a DMC was triggered via text message, with all legal criteria satisfied.

In 2020, Mr Al Mahmood was terminally ill and intended to update his will so all assets would pass to Rahman, rather than to his late wife’s family, as his existing will specified. He met with a will draftsman, Jonathan Amponsah, and began making arrangements. At that time, Mr Al Mahmood handed Rahman bank cards, cheque books, and estate-related documents which demonstrated clear dominion over his assets and granting Rahman access and knowledge.

However, due to COVID-19 restrictions, the new will was not finalised. One day before his death, Mr Al Mahmood sent a text to Jonathan Amponsah revoking his previous will and naming Rahman as his sole beneficiary. The message was intended to clarify his intentions and serve as his last testament to Rahman.

The court held that the text message met all the requirements for a DMC: contemplation of imminent death, conditional on his passing, and effective delivery of dominion. This case affirms that digital communications can satisfy DMC criteria, extending this long-standing legal exception into the digital age.

Seeking legal advice on making or challenging a DMC deathbed gift

As a DMC falls outside the formal requirements of Section 9 of the Wills Act 1837, it may be vulnerable to challenge.

For a person who wants to settle their estate in contemplation of death, it is generally better to make a will, which can be put in place very quickly to give the person peace of mind, thereby avoiding the need for, and risks with, a DMC.

Where a DMC is the only available option, where there is some independent documentary or witness evidence available, this may assist to prevent a dispute arising or may allow for early settlement. As shown by Rahman v Hassan, the courts take a pragmatic approach to what suffices as satisfactory evidence of the conditions for a DMC being met.

You may be involved in a dispute about a DMC (whether you challenge validity or you are defending a challenge).

In any of these circumstances, professional legal advice from a specialist in wills and estates or contentious probate is crucial to protect your interests.

Common dispute scenarios

Challenges by family members or executors

• Disputes often arise when a DMC contradicts the terms of an existing will or affects other beneficiaries’ entitlements.
• Executors may challenge the validity or the DMC because it bypasses probate and statutory formalities.
• Courts will scrutinise evidence of intention, delivery, and circumstances.

Challenges based on mental capacity

• The donor must have the same mental capacity as required for making a will.
• Challenges often focus on whether the donor understood the nature and effect of the gift, especially if they were seriously ill or under medication.
• Proving capacity retrospectively can be difficult and often relies on medical records and witness testimony.

Using a DMC in estate planning

• While a DMC can be a last resort, it should not replace a properly executed will.
• Wills provide certainty and reduce the risk of disputes, whereas DMCs are inherently risky and often contested.
• There are alternatives like emergency drafting or statutory provisions for remote witnessing which are safer options.

Donatio Mortis Causa is a common law exception, to the statutory formalities for making a valid will.  Strict criteria apply to establish the validity of the a gift made in this way and persuasive evidence is critical for both sides to the dispute.

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FAQs

Can a Donatio Mortis Causa be challenged?

Yes, based on specific things like lack of contemplation of death and other general valid challenges to a will.

Can a Donatio Mortis Causa gift override a will?

Yes, if it meets requirements of:

1. Contemplation of imminent death
2. Conditional nature of the gift
3. Delivery or transfer arrangements
4. Mental capacity
5. Clear intention

Does a Donatio Mortis Causa gift need to be made by a terminal illness sufferer?

Yes, it can’t be made if it’s just speculative.

There are other grounds that a DMC can be made on aside from terminal illness, but death must be imminent and not leave ample time to make an official will amendment or draw up a new will.

How long before death can a Donatio Mortis Causa gift be promised?

There’s not a specific timeline. It is more based on the promisor’s state of mind and contemplation of death, but it must be in the foreseeable future as timing is an important part of DMC’s validity.

Does a Donatio Mortis Causa gift need to be in writing?

No, it can be verbal but exchange of the asset or access to the asset needs to be evidenced in some way or be open to dispute.

Can a Donatio Mortis Causa be rescinded?

Yes, for example, if they recover or change their mind before death.

If there has been a relinquishing of “dominion”, then the donor will need to request this back before they pass – if possible – so the recipient does not have a case to continue with the DMC after the donor has died.