The Gazette 1984

SEPTEMBER 1984

GAZETTE

Donatio Mortis Causa: A Review and Update

by Mary Fenelon, B.C.L., Solicitor Tutor in Real Property Law, UCD.

T HE recent Circuit Court Case of Tuite -v- Malone, 15 May 1984, before Neylon J. necessitated a review and update on the law in relation to the doctrine of Donatio Mortis Causa. The Plaintiff in this case was successful in establishing a Donatio Mortis Causa in respect of two bank accounts and an insurance policy the property of the deceased. The Donatio Mortis Causa is an exception to the rule that equity will not complete an incomplete trust in favour of a volunteer. The Donatio is considered a special kind of gift with its own special rules which seem to be a mixture of those relating to gifts inter vivos and gifts by will. There are three essentials to prove a valid Donatio Mortis Causa:— 1. The gift must be made in contemplation of the death of the donor. 2. There must be a delivery of the subject matter of the gift to the donee or a transfer of the means of or part of the means of getting at the property. 3. The circumstances must be such as to establish that the gift is to take complete effect upon, but only upon, the death of the donor. The doctrine applies to most kinds of pure personalty, but does not apply to land, including leasehold property. Provided the above essentials are satisfied, the gift will be enforced on the donor's death despite the incompleteness of the gift prior to his death. In the recent Circuit Court case of Tuite -v- Malone the plaintiff sued the defendant as administratrix of the estate of the deceased donor. The plaintiff claimed a Donatio in respect of two bank books and one insurance policy. The plaintiff, a widow, was the deceased's sister-in-law. Since the death of his wife, the deceased had relied on her for help in organising his affairs, cooking for him occasionally and generally keeping an eye on him. She was not aware that he had any relatives. In fact it subsequently transpired on evidence that the deceased and his relatives had not been on talking terms for several years. After the death of his wife, the plaintiff helped the deceased with all the formalities involved in the administration of her estate. He also asked her to arrange for him to see a solicitor to make a Will and they had in fact an appointment for the date in question which was 14 June 1982. When she arrived at his home on that date, the plaintiff found the door open and the deceased at the kitchen sink, with his nose bleeding as the result of falls. The plaintiff helped him into the diningroom and put him on a chair. He asked her for some milk and she had to go

to the shops for this. After drinking the milk he said he felt ill and then got sick. He then said "hand me the box" (a tin box containing all his important documents). He gave the plaintiff two sets of keys to the house and took the two bank books and insurance policy, the subject matter of these proceedings, out of the box. He said "you are to keep these Harriet. I don't want anyone else near them. You know what I want". In evidence the plaintiff stated that she took this to mean that he wanted her to do what he would have done if he made a Will, which was to put a headstone over the grave of his wife Mary, to give some money to Whitefriar Street Church and to keep the residue for herself. The plaintiff then got a neighbour's assistance to get him into bed and the doctor came. He was sent to hospital and died that night. Before sending him to hospital the doctor asked him various questions to satisfy himself that After his death, the plaintiff was informed that the deceased had several relatives, the defendant being one of them. The defendant subsequently took out a grant of administration and proceedings were instituted against her in her capacity as administratrix. In Tuite -v- Malone, there was no problem in proving that the gift was made in contemplation of the donor's death. There was no dispute as to the fact that the deceased had died very shortly after making the gift and that he knew himself that he was dying when he made the gift. The doctor who attended him in his last hours was available to give evidence in Court, but was not in fact called. From the law relating to the first requirement of a Donatio, it would seem that it is only necessary that the donor contemplated death at the time of the gift — i.e. the donor's state of mind is important, it does not matter if the donee does not realise that the donor is dying. The donor must not be in a good state of health, according to the decision of Owens -v- Green [1932] IR 225, nor contemplating suicide per Agnew -v- Belfast Banking Company [1896] 2IR 204. The question of delivery of the gift is normally the most difficult proof. It must be certain that the donor has parted with actual dominion over the subject matter of the gift but it is not necessary that there be writing accompanying the delivery. Kiely's "Principles of Equity as applied in Ireland", 1936, states that an imperfect delivery of chattels may be sufficient for effectuating a Donatio Mortis Causa. He cites by way of example, the delivery of a key to a box, !189 the defendant was still lucid. The deceased died intestate.