The doctrine of donatio or gift mortis causa is often described simply (and insufficiently) as a gift of property made in contemplation of death. The classic example is the person in a terminal condition making a deathbed gift.
The fact that this doctrine is still expressed in Latin points to its roots in Roman Law a couple thousand years ago. It’s long been explicitly recognized in English common law, and followed in Canadian courts for over a century.
What is not so often discussed is the conditional nature of such a gift. In order for it to take effect, the donor must die. If there is a miraculous recovery then the gift may be revoked. Even if death does follow, an age-old test must be satisfied, otherwise the gift fails. Obviously this creates a conflict (legal and actual) between the purported recipient and estate beneficiaries.
Cain v. Moon  2 Q.B. 283
The oft-cited test for gift mortis causa is from Lord Russell of Killowen, Chief Justice of England. Three requirements must be met (quoted verbatim to the end of the bullets):
- first, the gift or donation must have been made in contemplation, though not necessarily in expectation, of death;
- secondly, there must have been delivery to the donee of the subject-matter of the gift; and
- thirdly, the gift must be made under such circumstances as shew that the thing is to revert to the donor in case he should recover.
Succession Law Reform Act, R.S.O. 1990, c. S-26, Part V [Ontario]
Part V of the Ontario SLRA outlines the rules for the support of dependants of a deceased person. Within that part, s.72 expands the property to be included in the estate for this determination, including any gifts mortis causa. ª
Snitzler v Snitzler, 2015 ONSC 2539
Maria Snitzler lived with her husband Guillermo and 21 year old son William. She also had a 43-year-old daughter Susie. In May, 2011, Maria was diagnosed with terminal liver cancer.
In September, Maria executed a Will which included a trust term requiring that her home be held for the benefit of her husband, with title to be transferred into joint names among him and the two children. Even so, Maria executed a document a week later immediately transferring the home into the three joint names. Maria died in October.
Despite being an adult, William commenced an SLRA Part V application seeking support as a dependent of Maria’s estate.
The judge rejected the application for three reasons. First, there was no evidence that the gift was conditional/revocable, as required by the third part of the test. Secondly, Canadian case law has consistently held that the doctrine of gift mortis causa is available for personal property but does not apply to real estate. And third, the transfer was clearly absolute, even though in the judge’s opinion Maria could have simply had her lawyer prepare a deed of trust in combination with the transfer.
- Gifts of personal property made shortly before and in contemplation of death can be gifts mortis causa, enforceable by the recipient. The property must be delivered, and the grantor must die to give effect.
- If the gift is to be revocable, an explicit statement should be recorded. If there is a recovery, the grantor would be advised to reclaim the gift (if desired), else the potential that the gift might be believed by the recipient (or possibly deemed in law) to be absolute.
- Though the application in Snitzler was unsuccessful, a gift mortis causa remains within the scope of property that could be brought back into an estate under an Ontario application for dependant support.