Donatio Mortis Causa Gifts Made in Contemplation of Death

Many of us have made a Will, but that Will may have been made a few years ago and it may be on our ‘death bed’ that we want to make gifts in contemplation of death.

What does Donatio mortis causa mean?

• A donatio mortis causa (a gift made in contemplation of death) is a gift inter vivos (gift “while alive” or “between the living”) by which the donee (recipient) is to have absolute title when/if the donor (person making the gift) dies.
• The gift made in contemplation of death, is conditional on death with the donor having parted with dominion over (in possession of) the subject-matter of the gift.

If the principles of a Donatio Mortis Causa are met, then the deathbed gift is likely to be legally valid.  If the deceased's estate refuses to honour the deathbed gift, then the recipient of the gift can make an application to the court for a formal court Order.

The ‘grey area’ is always whether the gift was made freely, and can it be proved?

Proving Donatio Mortis Causa:

• Deeds of unregistered land handed over.
• Registered land may be more difficult unless the HM Land Registry (HMLR) transfer of title form TR1 has been signed and submitted to HMLR.
• V5c vehicle registration certificate providing the details of a vehicle’s registered keeper, and the transfer of ownership (yellow section) signed to confirm transfer of ownership in life.
• Holding any bank account cards and/or online password access may be more difficult to prove donatio mortis causa. 

Deathbed gifts are gifts which are given by a person who believes they are facing imminent death, and which are only fully operational when they die.  The donor must either physically gift the asset (e.g..  an antique) or something that represents the gift (i.e.  keys to a box containing a gift) whilst alive.  If a cheque, it must cleared before the donor's death or before the bank is aware of the death.  If unregistered land, possession of the land deed should suffice.  If it is registered land, then we suggest it is better proof if the TR1 is already with the HMLR before death or posted to HMLR before death (with proof of postage retained).

The monetary value of the gift is still included in the deceased’s estate for inheritance tax calculations as it is only a fully completed gift on death. 

High Court Appeal

A court case is going through the England and Wales High Court on appeal at present (Rahman v Hassan, 2024 EWHC 1290 Ch) where the defendants argue the issue of whether land certificates or copies of leases are indicative of ownership, as the EWHC had already ruled (but now is being appealed), as opposed to real evidence of ownership.  The appeal is also that the EWHC was wrong to consider the physical transfer of an asset (e.g.  jewellery or keys to a box containing jewellery) and indicia of title (a document that proves someone owns a piece of property, whether it's personal or real estate) was evidence of intention rather than e.g.  a completed TR1 for changing registered owner of registered land with the Land Registry.  The defendants argue that the ‘intention’ to make a gift than the actual gift being made is a separate part of the requirements for a deathbed gift. 

More to follow on this when the appeal is heard, and we hope it brings clarification for what is required as proof for all donationes mortis causa.

Contact  Call Back  Calculators  Our Fees