The Gazette 1984

GAZETTE

SEPTEMBER 1984

donee permitting the retention by the donor after initial delivery may be sufficient, provided it is clear that the donor's possession remains that of custodian only and no longer that of owner. However, in Tuite -v- Malone the defendant claimed that the deceased's intention from his action suggested that he wanted the plaintiff to look after his possessions whilst he was in hospital. The defendant refused to accept that the wording of the deceased "you know what I want" could be construed in* the manner suggested by the plaintiff. Witnesses appearing on behalf of the defence gave evidence to the effect that the plaintiff had attempted to return the keys of the house to the deceased's relatives when she found out about their existence. The defence also attempted to introduce evidence to the effect that the bank books were with the keys when the plaintiff tried to return them, but this evidence was not supported by the witnesses in course of examination. In cross-examination the plaintiff admitted that she attempted to return the keys of the house, but only because the deceased had a dog living in the house and she was anxious that somebody would look after it. She lived a considerable distance away from the deceased's house and his relatives lived literally around the corner. After formal submissions, Neylon J. decided in favour of the plaintiff on the basis that the only reliable evidence came from the plaintiff. It had already been decided in McGonnell -v- Murray [1869] IR3EQ 460 that a Donatio Mortis Causa might be proved by the evidence of the donee alone, provided such evidence is clear and satisfactory. Neylon J. considered from the evidence that the deceased had made the plaintiff his confidante and that it was evident that, had he made a Will, he would have left everything to the plaintiff. This had not been done, but he had let her know his intentions in this respect and it was clear that he was seriously ill when he made the gift. The Judge considered that the deceased had been very specific about the gift. He handed the plaintiff the books and made a very specific statement in relation to what he wanted her to do with them. He had handed them over to her, according to the Judge, relying on her as a friend to carry out his wishes. They were not handed over for safe- keeping, but rather the Donatio Mortis Causa given in the belief that he could rely on her. Accordingly judgment was given in favour of the plaintiff in the terms of the endorsement of claim on the Equity Civil Bill. The plaintiff was asked to pay the deceased's funeral expenses as this appeared from the evidence to have been the deceased's intention. Each party was also asked to bear their own costs. As a consequence of this case, the law in relation to Donatio Mortis Causa has once more come before the Courts for review. The case confirms the older and accepted Irish authorities. It confirms that a plaintiff should not be precluded from obtaining relief simply because the plaintiff did not know that he or she was entitled to a Donatio Mortis Causa until legal advice was taken. The case also underlines the more important aspect in any case such as this, where a discretionary remedy is available, that the Judge has to approach each case on its facts and, at the end of the day, it is the Court in exercising its discretion, that concludes whether a valid Donatio Mortis Causa has or has not been established. •

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