DONATIO MORTIS CAUSA(A GIFT IN CONTEMPLATION OF DEATH)
A donatio mortis causa is a gift a donor makes during their lifetime to a donee but takes effect upon the death of the donor. This gift is similar to a lifetime gift in the sense that the subject matter of the gift is delivered to the donee by the donor when he is still alive. This gift will however take place upon the death of the donor.
According to Re Korvine’s Trust a donatio mortis causa is not free property and cannot therefore be subject to a will. This means that where a donor includes a gift given in contemplation of death to a donee in a will, the said beneficiary in the will will not receive anything. A donatio mortis causa is not a testamentary gift and therefore upon the death of the deceased cannot form part of his estate. However if the estate is unable to pay its debts, the subject matter of a gift in contemplation of death may be used.
Section 31 of the Law of succession Act outlines the characteristics of a valid donatio mortis causa. The same were captured in the landmark case of Cain vs. Moon where Lord Russell set out the conditions that must be met for a donatio mortis causa to be valid. This are :-
The gift must be made by the donor in the contemplation of death.
The gift must be conditional on the donor’s death.
The subject matter of the gift must be delivered to the donee.
The property must be capable of forming the subject matter of a donation mortis causa.
The Gift Must Be Made By The Donor In The Contemplation Of Death.
A donation mortis causa will be valid if the person making the gift is at the time contemplating the possibility of death, whether or not expecting death, as the result of a present illness or present or imminent danger.Donor’s death need not be imminent but the donor must believe that they are dying or they are likely to die in a particular way.
The gift will still be valid if the person making that gift dies from any cause without having survived the contemplated illness or danger. This means that where a donor survives the contemplated illness of danger and dies from a different cause, then the gift will fail. In Wilkes vs. Allington the deceased thought he was going to die of cancer but in fact died of double pneumonia. The issue in court was whether the gift was valid even if the deceased died of double pneumonia other than the contemplated cancer. It was held that the gift was valid and would fail only if the donor had survived the contemplated illness or danger but died of a different cause.
A donation mortis causa shall not be valid if the death is caused by suicide. In Re: Dudman, the donor committed suicide because he could no longer cope with a terminal illness. It was held that the gift was not valid as the court could not uphold a gift intended to take effect by means of suicide.
The contemplation of death may be express or implied from the circumstances. In Lillingston the donor expressed opinion that she was “done for” and the court inferred that the gift was made in contemplation of her death.
Dr Pengano believed that he was going to die due to nightmares he had been having. Since dreams cannot kill, then there is no contemplation of death.
Due to lack of the above condition, then the gift will not pass therefore the car is not a valid donation mortis causa.
The Gift Must Be Conditional On The Donor’s Death.
If the donor does not die, the gift will not take effect and the donor is entitled to recover possession of the property from the donee. A gift can expressly be stated by the donor to be conditional upon death or it can be implied from the circumstances.
By Mr Pangano telling Rafiki that he could drive the car off upon his death and having subsequently died shows that the gift was conditional on donor’s death and is therefore a valid donation mortis causa.
The Subject Matter Of The Gift Must Be Delivered To The Donee.
A donation mortis causa will be valid where there is delivery to the intended beneficiary of possession or the means of possession of the property or of the documents or other evidence of title thereto.
The donor must have handed to the donee the subject matter of the gift or the means of controlling it. This means that the donor must have parted possession with the subject matter of the gift. In Woodward vs. Woodward a father had been seriously ill and had handed the keys to his car to the son but kept a duplicate with him. The issue in court was whether the father had parted with dominion of the gift. The court answered in the affirmative.
In light of the above condition, Dr. Pengano handed keys of his car KKO 530B to his friend Rafiki and told him that he should drive it off when he died. Delivering of the subject matter, being the keys, of the gift, being the car, intending the said gift to be owned by Rafiki upon his death satisfies a valid donation mortis causa.
The Property Must Be Capable Of Forming The Subject Matter Of A Donation Mortis Causa.
A valid donation mortis causa should be movable property (which includes any debt secured upon movable or immovable property) which he could otherwise dispose of by will. Property that cannot be disposed of by will cannot be donated. This include but not limited to cheques and promissory notes.
In Re Beaumont it was held that a cheque cannot form a valid donation mortis causa as it cannot be enforced without consideration.
Dr Pengano having given Rafiki a car that is a movable property makes this gift a valid donation mortis causa.
The car gifted to Rafiki by Dr Pengano satisfies all other conditions of a gift in contemplation of death apart from the first condition. Therefore based on lack of one condition, the gift will fail and therefore there is no valid donation mortis causa.
However, proceedings will be brought against Kora, Dr Pengano’s brother, who drove off with the car. This will be guided by section 45 of the Law of Succession Act which states that anyone who intermeddles with the property of a deceased will be guilty of an offence and liable to imprisonment or a fine or both.
Law of succession Act 2015
Law of succession By Musyoka William
Kenya Law Resource