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The Exception is the Rule: Donatio Mortis Causa (Article) [2003] JSPL 26; (2003) 7(2) Journal of South Pacific Law

THE EXCEPTION IS THE RULE: DONATIO MORTIS CAUSA

BOB HUGHES∗

In conventional terms a donatio mortis causa (or what in the USA is called a gift^[1] causa mortis) is a transfer of property made in contemplation or anticipation of the death of the maker. It involves a type of conditional transfer of property; that is to say, it is a transfer which vests property in the recipient or donee immediately it is made, but subject to a condition that the testator’s death should occur shortly thereafter.^[2]

There persists much confusion on key issues surrounding transactions of this nature. One fundamental issue has been whether this immediate vesting property under a donatio mortis causa is precisely the characteristic of the transaction. Some of the earlier English authorities, emphasising the testamentary nature of the transaction, appeared to suggest that a donatio mortis causa gave rise to a gift on condition precedent such that the death of the maker had to occur before the any property vested in the donee at all. American authorities, and later ones in England and elsewhere, have appeared to suggest, emphasising the inter vivos nature of the gift, that it gives rise, on the contrary, to a condition subsequent. This condition subsequent is such that the property vests immediately, but might divest if the gift is revoked or if the death does not occur. A condition subsequent appears now to be more clearly established as the basis on which the gift takes effect.^[3]

The law pertaining to this type of transaction is part of the received law in those South Pacific jurisdictions which have been influenced by common law. However there have been few occasions where the courts of the region have had to consider it. ^[4] The basis upon which it might be applied in the future is an open question, as it is to some degree in other common law jurisdictions internationally. It is a category of gift which contains many anomalies and one might well consider whether the South Pacific jurisdictions ought to adopt it at all, without at least substantially refining the basis of its application.

HISTORICAL BACKGROUND

A transaction of this kind is undertaken when, to quote Blackstone, a person ‘in his last sickness’,  ‘apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods to keep in case of his decease’.^[5] This species of transaction has its origins in Roman law where it appeared to be the product of attempts to avoid the technical or formal elements of succession law. The Roman law permitted transactions of this nature between husband and wife because these were gifts conferred during the course of a valid marriage.^[6]