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‘Donatio Mortis Causa’ –Gift on the Occasion of Death

A ‘Donatio Mortis Causa’ is often referred to as a ‘Gift on the occasion of death’. It is a conditional gift made to another person whilst the deceased is alive that, if it is not revoked by the deceased prior to their death, becomes the absolute property of the person on the deceased’s death.

According to a long history of court decisions there are three requirements for a Donatio Mortis Causa to be valid:

  1.  The gift must be made in contemplation, not expectation, of the deceased’s death;
  2. There must be a delivery of the gift to the person or a transfer of the means for the person to obtain the gift; and
  3. The gift must be conditional in that it is revocable by the deceased up until the time of their death.

A Donatio Mortis Causa has the capacity to severely reduce the size of the deceased’s Estate. If you are a beneficiary of an Estate where there is an alleged Donatio Mortis Causa then it is in your best interests to seek expert legal advice from a Probate specialist. There is extensive case law surrounding whether a Donatio Mortis Causa is valid and our expert Probate specialist can assist you in determining whether the gift should be challenged. If the challenge is successful the gift will form part of the Estate of the deceased to be distributed to the beneficiaries.

A recent decision of the New South Wales Supreme Court in Tawil v Public Trustee of NSW; Estate of Michael Pavlovich Biriukoff addressed the issue of whether there was a valid Donatio Mortis Causa. In these proceedings the deceased died at St Vincent’s Hospital, Sydney after being driven from his lodgings in Strathfield by Mr Tawil. Mr Tawil alleged that during the drive to the hospital the deceased had given him a black bag and said that he wanted Mr Taewil to have everything in the back should something happen to the deceased. The black bag contained keys to two motor vehicles and a number of bank documents with funds amounting to approximately $190,000 (American) held in an American bank account.

The deceased died whilst in hospital and left no Will. The Public Trustee was granted Letters of Administration to the Estate which was had a total value of $487,000. Mr Tawil sought a declaration from the Court that he was the absolute owner of the funds in the deceased’s bank accounts as well as the owner of the two motor vehicles. The Court considered whether there had been a Donatio Mortis Causa and held that the documents in the black bag were not the delivery of title of them to Mr Tawil and thus one of the three essential requirements for Donatio Mortis Causa was not present.

If you believe you have received a valid Donatio Mortis Causa or if you are a beneficiary wanting to challenge a Donatio Mortis Causa then you need to speak to the Northern Beaches Lawyers.

Graeme Heckenberg is an expert Wills and Estate lawyer. If you are living on the Northern Beaches and surrounding Peninsula and need help and advice in a Will dispute or Estate matter, call for a consultation.

Call today for a an appointment closer to home on 9221 0341

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