Delqoffe v Fader: ChD 1939

Conditions for Donatio Mortis Causa

A woman, in expectation of death, delivered a bag to her friend stating that she wished her friend to have everything in the bag including the contents of an envelope within the bag. In the envelope was a deposit book with the Midland Bank showing a credit balance on an account owed to the donor.
Held: the gift, which was otherwise effective to pass title to the contents of the bag, was ineffective to the moneys in the account because the passbook did not contain the terms of the contract between the bank and the donor and the evidence of the bank manager was that moneys could be withdrawn from the account on written instructions of the customer without its being necessary to produce the passbook.
Luxmore J said: ‘. . there are to be found in the books many cases dealing with the subject matter of donatio mortis causa – three essentials to constitute such a gift-namely (i) the gift must be made in contemplation of the death of the donor, although not necessarily in expectation of death; (ii) there must be delivery of the subject-matter of the gift to the donee, or, I think, a transfer of the means of, or part of the means of, getting at the property; and (iii) the circumstances must be such as to establish that the gift is to take effect only on the death of the donor. It follows that the title of the donee is not complete until the donor is dead. If the subject-matter of the gift is not completely vested, the question arises whether or not the donee can call upon the legal personal representative of the donor to complete the title. Where there is a donatio mortis causa of a subject-matter which is not completely vested, I think that the true legal aspect is that a trust has been raised under which the donee can call on the legal personal representative of the donor to complete the gift. I think that that aspect of the case was settled in Duffield v Elwes, and has been recognised for years. Of course, in the case of a chose in action, physical delivery is impossible, but it has been held that in such cases the delivery of a document essential to its recovery may be sufficient. The test of whether the delivery of the document constitutes a good donatio mortis causa of a chose in action depends on the answer to the question whether the document expresses the terms on which the subject-matter of the chose in action is held by the donor, or the terms under which the chose in action came into existence.’

Luxmore
(1939) Ch 922, [1939] 3 All ER 682, 109 LJCh 6
England and Wales

Wills and Probate

Leading Case

Updated: 22 November 2021; Ref: scu.669896