By Joan Ogeto
Getting Your Wishes Honoured
The mere thought of contemplating death may seem like an unwelcome harbinger of doom, yet, it remains an inevitable part of the human experience. By confronting this reality with clarity and preparation, one can gain a sense of peace and control over their legacy. One important aspect of such preparation involves understanding the various methods of transferring assets or property in case of death.
The concept of gifts is divided into two categories: a simple lifetime gift (gift inter vivos) and a gift in contemplation of death (donatio mortis causa), as outlined in the Law of Succession Act. A simple lifetime gift refers to the transfer of property or assets from one individual to another without the expectation of impending death.
A donatio mortis causa is a gift made by a person during their lifetime that is conditional upon their death. Buckley LJ in Re: Beaumont [1902] 1 Ch 889 described donatio mortis causa as a gift that is similar to a lifetime gift in that the subject matter of the gift is delivered to the donee during the donor’s lifetime, but the gift takes effect upon the death of the donor. It is a gift made in expectation of death, which cannot be revoked by a subsequent will, nor can it be given away as a gift under a will to someone else. It is not free property; it cannot therefore be the subject of a will. This means that if a donor delivers property during their lifetime with the intention of making the gift conditional upon death, and then subsequently makes a gift of the same property by will to another person, the beneficiary named in the will receives nothing.
In the case of Cain v Moon [1896] 2 QB 283 set down the conditions which need to be met for a valid gift in contemplation of death. These are;-
1. The gift by the donor must be in contemplation of death
2. The gift is conditional on the donor’s death
3. The subject matter of the gift must be declared to the donee
4. The property must be capable of forming the subject matter of a donatio mortis causa, and the donee must survive the donor.
The burden of proving that these elements have been met lies with the donee. Lord Russell in this case stated that “…for effectual donation mortis causa three things must combine. 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 slew that the thing is to revere to the donor in case he should recover.”
Gifts in contemplation of death are provided for in s.31 of the Law of Succession act as follows: –
“A gift made in contemplation of death shall be valid, notwithstanding that there
has been no complete transfer of legal title, if—(a) 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; and
(b) a person gives movable property (which includes any debt secured upon movable or immovable property) which he could otherwise disposed of by will; and
(c) 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; and
(d) a person makes a gift in such circumstances as to show that he intended it to revert to him should he survive that illness or danger; and
(e) the person making that gift dies from any cause without having survived that same illness or danger; and
(f) the intended beneficiary survives the person who made the gift to him:
Provided that—(i) no gift made in contemplation of death shall be valid if the death is caused by suicide; (ii) the person making the gift may, at any time before his death,
lawfully request its return.”
Section 31(a) provides that a gift in contemplation of death is valid if the person making the gift is, at the time, contemplating the possibility of their death due to a current illness or impending danger. The ruling in Staniland v Willott [1850] 664 was that the gift must be made in anticipation of death from an existing disease or other danger, but not necessarily with the expectation of immediate death. The donor must believe they are dying or likely to die in a particular manner. It is generally irrelevant that the donor dies from some cause other than the one within their contemplation, so long as the condition from which the deceased thought he was dying continued up to the date of the donor’s death. Section 31(e) provides for this. In Re Craven’s Estate (No.1) [1937], it was stated that the donor must contemplate their death as “within the near future, what may be called death for some reason believed to be impending.” However, the donor must not be anticipating immediate death or be on their deathbed when making the gift.
Similarly in Wilkes v Allington [1931] 2 Ch 104, the donor, who knew he had cancer and considered himself “doomed”, did not know how long he had to live but believed death was near. He died a month later from pneumonia, an unrelated illness. The court held that the gift was valid, emphasising that it did not matter whether the actual cause of death was the one the donor anticipated.
Finally, the condition that the gift be made in contemplation of death cannot be met if the donor is contemplating their own death by suicide. Section 31(i) states that “no gift made in contemplation of death shall be valid if the death is caused by suicide.”
Agnew v Belfast Banking Co [1896] 2 IR 204 held that it was against public policy to uphold a gift intended to take effect by means of suicide. In Re Dudman [1925] 1 Ch 553, the donor committed suicide due to his inability to cope with a terminal illness. The court followed Agnew v Belfast Banking Company and additionally ruled that the donation failed on grounds of public policy. However, the legal position established in these cases is no longer valid in England, following the enactment of the Suicide Act of 1961, which decriminalized suicide.
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, as the gift is conditional upon the donor’s death. The failure of the contemplated death to occur leads to the termination of the gift in contemplation of death, as outlined in S.31(d) and S.31(ii).
Section 31(c) states that the donor must have handed over to the donee or their agent the subject matter of the gift, or the means of controlling it. The donor must have parted with possession or dominion over the subject matter of the gift. A gift in contemplation of death is valid only after such delivery. Justice Nyakundi in Re Estate of Kabue Ole Lapate(Deceased) [2018] eKLR held that the rights concerning gifts in contemplation of death also apply to land interests. The subject of the gift must be capable of being donated. It was determined in Re Beaumont [1902] 1 Ch 889 that a cheque cannot form the subject of a donatio mortis causa as it is not enforceable without consideration. Similarly, in Leaper[1916] 1 Ch 579, it was held that a promissory note cannot be the subject of such a gift.
It is important for individuals to be aware of their options and understand how to effectively transfer gifts to ensure they are passed on as intended. A donatio mortis causa provides a distinct method for managing one’s estate in contemplation of death, but its validity depends on meeting specific conditions, such as the donor’s intent and proper delivery.
By understanding these requirements, individuals can better ensure their wishes are honored.
BIBLIOGRAPHY
Cases
Agnew v Belfast Banking Co [1896] 2 IR 204
Cain v Moon [1896] 2 QB 283
Leaper [1916] 1 Ch 579
Re: Beaumont [1902] 1 Ch 889 at 892
Re Craven’s Estate (No.1) [1937]
Re Dudman [1925] 1 Ch 553
Re Estate of Kabue Ole Lapate (Deceased) [2018] eKLR
Staniland v Willott [1850] 664
Wilkes v Allington [1931] 2 Ch 104
Legislation
Law of Succession Act, Cap 160 (2012)
Suicide Act of 1961
Joan Ogeto is a Law graduate (LLB Keele University UK) and writer. She is pursuing the Advocates Training Program (ATP) at the Kenya School of Law. joanogeto95@gmail.com