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GAZETTE
SEPTEMBER 1984
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
the defendant was still lucid.
The deceased died intestate.
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,
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