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GAZETTE
SEPTEMBER 1984
BCL
BUSINESS COMPUTING AND LAW LIMITED
Authorised Wang Dealer.
Welcomes your firm to our stand at
The Law Society's Computer Exhibition
BCL will be demonstrating:—
* Wang Legal Word Processing
* Conveyancing Systems for:—
Domestic
Commercial
Building Society
* Debt Collection
* Probate
* Litigation
* Legal Accounting Matter / Nominal
* Time Recording
The above systems are available on the
Wang Professional Micro Computer
and
Wang OIS Mini Computer range.
Business Computing and Law Limited,
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which contains chattels,
or
documents of title to chattels
(cf
Re Mulory
[1924] 1 IR 98). He also cites examples of
what,
inter alia,
has been held capable of being the subject
matter of a
Donatio Mortis Causa:
a Post Office savings
book (cf
Re Thompson
[1928] IR 606 and
Hearty
-v-
Colman
[1953-54] Ir. Jur. Reg. 73), a policy of insurance
effected on the donor's life (cf
Nelson
-v-
Prudential
Assurance Company Limited
[1929] N.I. 113.)
According to the English Court of Appeal in
Birch
-v-
Treasury Solicitor
[1950] All ER 1198,
"where the subject matter of an alleged
Donatio
Mortis Causa
consisted of a chose in action,
incapable itself of physical delivery, the real test of
the validity of the gift is whether the instrument, of
which there had been a physical delivery, was the
essential
indicia
or evidence of title, possession or
production of which entitles the possessor to the
money or property purported to be given and it was
not essential that every term of the contract out of
which the chose in action arose should be stated in
the document of title."
There was no real dispute in relation to the capability
of the bank books and insurance policy in the case of
Tuite
-v-
Malone
constituting a
Donatio Mortis Causa per
se,
in the light of decided and tested authorities.
However, the defendant's case rested on the assumption
that the delivery of the gift to the donee before the
donor's death had been a delivery of the goods for safe-
keeping only and not a gift in the real sense of the word.
In
Re Mulroy
[1924] 1 IR 98 it was decided that the
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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