No. 3]
A Reassessment of the Scope of the Gift Mortis Causa
Adrian J. Bradbrook *
The origin of the law relating to gifts mortis causa can be traced
back directly to Roman Law. The definition offered by Justinian
is generally agreed to represent accurately the law as it operated
in the latter stages of Roman Empire: 1
A donation mortis causa is that which is made to meet the case of
death, as when anything is given upon condition that, if any fatal accident
befalls the donor, the person to whom it is given shall have it as his
own; but if the donor should survive, or if he should repent of having
made the gift, or if the person to whom it has been given should die
before the donor, then the donor shall receive back the thing given.
These donations mortis causa are now placed, in all respects, exactly on
the footing of legacies….
This rather loose definition of the scope of the gift mortis causa
has been modified by the common law and its boundaries have been
construed more strictly. The following statement of Lord Russell
of Killowen, C.J. in Cain v. Moon 2 has been accepted throughout
the common law world as the classic definition of the essential
elements of a gift mortis causa:
It is … conceded that for an effectual donatio mortis causa three things
must combine; first, the gift or donation must have been made in con-
templation, though not necessarily in expectation, of death; secondly, there
must have been delivery to the donee of the subject-matter of the gift;
and, thirdly, the gift must be made under such circumstances as shew
that the thing is to revert to the donor in case he should recover. This
last requirement is sometimes put somewhat differently, and it is said
that the gift must be made under circumstances shewing that it is to
take effect only if the death of the donor follows; …
Despite the fact that the gift mortis causa can be traced back
over 2,000 years, the common law courts have constantly reiterated
their dislike of this law and their wish that it were abolished or
its essential elements defined more strictly. As long ago as 1827,
* Assistant Professor, Faculty of Law, Dalhousie University, and a member
of the Bar of Nova Scotia.
‘ Institutes, Lib. II, Title VII. The translated version used here comes
from, T.C. Sandars, The Institutes of Justinian, 6th ed., (London, 1878).
2 [1896] 2 Q.B. 283, at 286. These requirements were adapted in Levashoff
v. Block, [1921] 1 Ch. 343, Wilkes v. Allington, [1931] 2 Ch. 104, Rose v.
Cameron [1901] F. (Ct. of Sess:Scotland) 337, and Szczepkowski v. Eppler,
[1946] 3 D.L.R. 641, at 642 (S.C.C.), per Kerwin I.
McGILL LAW JOURNAL
[Vol. 17
in the case of Duffield v. Hicks, the Earl of Eldon commented in the
House of Lords: 3
It would be a much better improvement of the law than many of these
improvements which have been lately talked of, if the donatio mortis causa
were struck out altogether; …
The rationale behind the judicial dislike of the gift mortis causa
is that this type of gift lacks all those formalities and safeguards
which the law throws around wills and creates a strong temptation
to the commission of fraud and perjury.’ To date, however, the
words of the Earl of Eldon have gone unheeded in the legislative
assemblies of England and Canada.
The purpose of this paper is to show that the judiciary, by
appropriately defining the meaning of the first and third require-
ments of a valid gift mortis causa, as stated by Lord Russell in
Cain v. Moon, seems to have laid the ground-work, possibly un-
wittingly, for a drastic reduction of the operation of this law. This
possible reduction would result in the scope of the gift mortis causa
being limited to only a tiny proportion of all those cases in which
it has traditionally been held valid. Two completely different lines
of eighteenth and nineteenth century cases, which were ignored
but never overruled by the courts in the first half of the twentieth
century, have both been revived within the last twenty years.
Although these lines of cases are only of minor importance if
treated by the courts in isolation, as has happened in the past, their
effect on the law, if used in combination, could be dramatic. The
significance of these developments seems to have been overlooked.
The first line of cases has developed around the meaning of the
words in the first requirement “… in contemplation, though not
necessarily in expectation of death.” The words “contemplation”
and “expectation” are inherently vague and have frequently been
the subject of judicial consideration. The Oxford English Dictionary
defines “contemplation” as “prospect, expectation;” and is thus
3 (1827), 1 Dow & Cl. 1, at 8; 6 E.R. 425, at 428.
4 Hall v. Hall (1891), 20 O.R. 684, at 688, per Ferguson, I., referring to
Hatch v. Atkinson, 56 Me. at 326. Cf. the similar stand taken by American
courts: for example, in Parker v. Copland (1906), 70 N.J.Eq. 685, at 691, 64 A.
129, at 131, the highest court of that State commented:
“Of all legal rules, however, those that have grown up around the doctrine
of donatio causa mortis should be the least subject to relaxation. Formed
as these rules were at a period when personal property consisted for
the most part of tangible chattels or private choses in action, they
have survived to do duty at a time when fortunes of unprecedented
dimensions are evidenced solely by documents
that fall within their
operation and effect.”
No. 3]
GIFT MORTIS CAUSA
the traditional
clearly unhelpful in this context5 The following propositions effec-
tively summarize
interpretation placed on the
meaning of the phrase by the common law courts: firstly, an alleged
gift mortis causa made by a person not terrified by the apprehension
of any present peril, but moved by the general consideration of
human mortality, will be held invalid; 6 secondly, it is essential that
the gift be made under apprehension of death from some existing
disease or other impending peril; 7 thirdly, the fact that the donor
does not expect to die, although realizing he is in peril of death is
irrelevant; 1 and finally, the donor must die while the original peril
is still subsisting, although it is not necessary that he actually die
from this original peril
In 1958, however, this area of law was thrown into confusion
by the decision of the Ontario Court of Appeal in Thompson v.
Mechan,’0 that the donor must be in extremis at the time of making
the gift. This case was followed four years later by the same court
in Canada Trust Co. v. Labadie.1 ‘ In the former case, Roach, J.A.
approved and applied Cain v. Moon, but went on to say:
5 Shorter Oxford English Dictionary, vol. 1, p. 380.
6 “By the term ‘in contemplation of death’ is meant something more than
the general expectancy of death entrusted by all persons and something
less than contemplation of imminent death”: In re Eshelman’s Estate (1952),
52 Lanc. Rev. 435, affd., 89 A. 2d 775, 371 Pa. 400.
7″The first essential [requirement for a valid gift mortis causa] will not
be satisfied by a vague and general impression that death may occur from one
of these ordinary risks that attend all human affairs”: Thompson v. Mechan,
[1958] O.R. 357, at 363 –
364, per Roach, S.A.
A mere ailing state is insufficient: Woodbridge v. Spooner (1819), 3
B. & Ald, 233, 106 E.R. 647.
an illness: In re Kirkley, Cort v. Watson (1909), 25 T.L.R. 522.
Mere feebleness due to old age is insufficient, unless it is combined with
8 E.g., Braun v. Brown (1939), 94 P. 2d 348, 14 Cal. 2d 346; Bergman v.
Greenwich Savings Bank (1947), 74 N.Y.S. 2d 638.
9 Despite the decisions in McDonald v. McDonald (1903), 33 S.C.R. 145, and
Ward v. Bradley (1901), 1 O.L.R. 118 (C.A.)
to the contrary, it is submitted
that the better view is that it is not necessary for the donor to die from
the same malady as he contemplated at the time of the alleged gift.
Authorities for this proposition are In Re Richards: Jones v. Rebbeck [1921]
1 Ch. 513 and Wilkes v. Allington, supra, n. 2. The case of McDonald v.
McDonald, supra, was advanced by counsel for the plaintiff in Thompson v.
Mechan, supra, n. 7, but was expressly disapproved by MacKay, S.A., at p. 359.
See H.E. Read, “Gifts ‘Mortis Causa’ – Necessity for Death in Manner
Contemplated by Donor” (1931), 9 Can. B. Rev. 663, for a review of the
authorities pertaining to this point of law and the rationale behind the
decision in Wilkes v. Allington.
10 Supra, n. 7.
11 [1962] O.R. 151; 31 D.L.R. (2d) 252 (CA.).
McGILL LAW JOURNAL
[Vol. 17
In English Law, a donatio mortis causa is only valid when made in
contemplation of death from a cause that is proximate, either an existing
or immediately impending peril, placing the donor in extremis.’ 2
In the latter case, the same judge, without citing Thompson v.
Mechan, commented: 13
It is impossible on the evidence to hold that at the various times when
he delivered possession to the respondent, he was by reason of his then
physical condition, and the surrounding circumstances, in extremis. Such
a condition is an essential to a valid donatio mortis causa.
There is clearly need of an authoritative ruling from the Supreme
Court of Canada as to the meaning of the phrase “in contemplation,
though not necessarily in expectation of death” now that the validity
of the traditional interpretation of the first requirement of Cain v.
Moon appears to have been cast into doubt by the Ontario Court
of Appeal. However, owing to the comparative
infrequency of
appeals in this area of law, a ruling will not likely come in the near
future. In the meantime, we can only speculate as to the present
state of the law.
It should be noted that on the facts there were other grounds
in both cases for rejecting the alleged gift, with the result that the
necessity of the in extremis standard can be treated as a mere
obiter dictum. In Thompson v. Mechan, the deceased, who was very
apprehensive of flying, delivered the keys of his car and the vehicle
permit to the plaintiff shortly before departing on a regular flight
to Winnipeg. The deceased arrived safely, but died suddenly from
a coronary thrombosis two days later whilst still in Winnipeg.
Roach, J.A. observed 14 that air travel is not a sufficient peril for
the possible application of the law on gifts mortis causa, and that
even if it were, the gift would still fail because the deceased did not
die from the peril itself or while the original peril was still sub-
sisting.’ ,5
In Canada Trust Co. v. Labadie, the donor made three promissory
notes payable to the donee with the endorsement “if anything
happens causing my death this note is to be paid to [the donee]”.
Although the donee had possession in the seven month period
12 Supra, n. 7, at 364-5.
13 Supra, n. 11, at 152; 253.
‘4 Supra, n. 7, at 364.
15 It is possible to contend, however, that the original peril was still
subsisting in the sense that the deceased still had to take the return flight
to Toronto. The result of this argument would depend on whether the round
trip is treated as one whole or two separate entities. This point was not
raised by counsel.
No. 3]
GIFT MORTIS CAUSA
between the alleged gift and the death of the donor, the latter
continued to receive the payments and interest on the notes. Thus
the decision can be supported on the ground that the donor retained
dominion over the notes.16
In Thompson v. Mechan, the court referred to the old English
case of Hedges v. Hedges 17 as authority for the adoption of the
in extremis standard. Megarry, in a critical note on the two Ontario
decisions,’ attempts to remove this “cloak of authority” by showing
that the Court of Appeal failed to take notice of the fact that the
decision of the court in Hedges v. Hedges was later reversed by the
House of Lords.’ 9 Two arguments can be put forward in defence,
however. Firstly, it should be noted that the House of Lords did
not expressly state that the standard of in extremis was wrong, as
no reasons were given. Secondly, and perhaps more important,
there are several other cases in the eighteenth and nineteenth
century upholding the in extremis standard to which neither
Roach, S.A. nor Megarry referred.20 Although the American courts
have consistently rejected the application of the in extremis doc-
trine,21 all that can be said on this point as to the English and
Canadian law before 1958 is that the weight of authority was against
16 cf. Young v. Derenzy (1897), 26 Gr. 509; this case can be contrasted with
Charleton v. Brooks (1903), 6 O.L.R. 87 (H.CJ.).
.17 (1708), Prec. Ch. 269, 24 E.R. 130.
1881 L.Q. Rev. 21, at 22.
10 (1709), 2 Bro. P.C. 457, 1 E.R. 1062.
20In Miller v. Miller (1735), 2 P. Wins. 356, 24 E.R. 1099, the words “in
extremis” were not mentioned, but the Master of the Rolls clearly had this
strict standard in mind when, referring to an alleged gift mortis causa, he
commented:
“Neither are gifts of this kind good, unless made by the party in his
last sickness.”
See also Walter v. Hodge (1818), 2 Swans. 92, 36 E.R. 549; Thorold v. Thorold
(1809), 1 Phill. Ecc. 1, 161 E.R. 894; Ward v. Turner (1752), 2 Ves. Sen. 431,
28 E.R. 275; and Staniland v. Willott (1850), 3 Mac. & G. 664, 42 E.R. 416.
21 See, for example, Thomas v. First National Bank of Danville (1936), 166
Va. 497, 186 S.E. 77; Lawrence v. Hartford National Bank and Trust Co.
(1963), 193 A. 2d 506, 24 Conn. Sup. 419; Flint v. Varney (1935), 264 N.W. 277,
220 Iowa 1241; In re Van Wormer’s Estate (1928), 238 N.W. 210, 255 Mich.
399. The case of In re Heisler’s Estate, (1913), 85 Misc. 271, 147 N.Y.S. 557,
when the Surrogate Court of New York County held that a gift was not
one mortis causa where the donor was not in extremis, or in immediate
danger of death, although never expressly overruled, seems to have been
ignored.
McGILL LAW JOURNAL
[Vol. 17
it: 22 the two Ontario decisions were certainly not without precedent,
however.
Even if the observations of Roach, J.A. in Thompson v. Mechan
and Canada Trust Co. v. Labadie are obiter, the significance of these
decisions for the future of the gift mortis causa is dramatic. If the
test of in extremis is adopted, only a small percentage of alleged
gifts mortis causa will be declared valid in future compared with
the total number that have been upheld in the past under the
traditional more relaxed interpretation of the words “in contem-
plation, though not necessarily in expectation of death.”
An examination of the meaning of “in extremis” is essential if
the precise limits of the operation of the gift mortis causa are to be
ascertained. Surprisingly, perhaps in view of the number of times
the phrase has been used in the law courts, in extremis has never
been the subject of judicial interpretation. The only definition
attempted to date has been by Black’s Law Dictionary: 23
When a person is sick, beyond the hope of recovery and near death,
he is said to be in extremis.
The only other area of law where the phrase “in extremis” comes
into consideration is the exception to the rule against hearsay
evidence in the case of dying declarations. Although, in this area of
law, no definition of “in extremis” is given directly, a number of
judges have indicated the sort of situations they consider the phrase
to include. In R. v. Woodcock,24 Eyre, C.B. stated at p. 353:
Now the general principle on which this species of evidence is admitted
is, that they are declarations made in extremity, when the party is at
the point of death, and when every hope, of this world is gone: …
The requirement was later laid down by Willies in R. v. Peel,2 5
and upheld in several later decisions, 26 that the declarant must be
under a “settled hopeless expectation of death.”
Whether the phrase “settled hopeless expectation of death” will
be adopted by the courts as their definition of in extremis when
22The following cases expressly reject the in extremis standard: Hill v.
Chapman (1789), 2 Bro. C.C. 613, 29 E.R. 337; Blount v. Burrow (1792), 4
Bro. C.C. 72, 29 E.R. 784; and the Scotish case of Blyth v. Curle (1885), 12 R.
(Cf. of Sess.) 674.
234th Ed., p. 701. The same definition is used in. the Cyclopaedic Law
Dictionary, 3rd Ed., p. 624.
24(1789), 1 Leach 500, 168 E.R. 352.
25 (1860), 2 F. & F. 21, 175 E.R. 941.
26See, for example, Chapdelaine v. R., [1935] S.C.R. 53, at 58; R. v. Buck,
[1941] 1 D.L.R. 302, at 303, [1940] O.R. 444, at 446, 74 C.C.C. 314, at 316; R. v.
Sunfield (1908), 15 O.L.R. 252 (CA.), at 256.
No. 3]
GIFT MORTIS CAUSA
considering the validity of an alleged gift mortis causa remains to
be seen. To date, the judges in those cases which have upheld the
validity of the “in extremis” test have not had to consider any
borderline cases, which would necessarily bring the proper meaning
of the phrase into consideration.
One further observation must be made in this context. It appears
from dicta in some of the cases supporting the in extremis standard
that in certain limited circumstances the courts may be prepared
to make an exception. These dicta suggest that a donor may be able
to make a valid gift mortis causa without necessarily being beyond
the hope of recovery, if he has not got the opportunity of making
a will.
Roach, J.A. quotes with approval
Cowper, C. in Hedges v. Hedges:
the following dictum of
… where a man lies in extremity, or being surprized with sickness, and
not having an opportunity of making his will; but lest he should die before
he could make it, he gives with his own hands his goods to his friends
about him: this, if he dies shall speak as a legacy; but if he recovers, then
does the property revert to him.27
There are two possible ways of interpreting the word “oppor-
tunity”. It could be construed narrowly, simply involving a determin-
ation of whether the donor has the time to make a will before his
death. If this is the proper interpretation, then the words “oppor-
tunity of making his will” would not be a separate condition of
validity for a gift mortis causa and would simply be explanatory
of the first phrase “where a man lies in extremity”. Alternatively,
however, opportunity could be interpreted broadly, and include
consideration of whether the donor has the time to obtain the
services of a lawyer to draw up a will. This latter test would lead
to a variation in the standard according to the circumstances of
each donor: for example, a person living in the wilderness would
require far longer to gain the services of a lawyer than would a
city-dweller.
A number of obiter dicta in American cases seem to indicate
that the terms “in extremis” and “no opportunity of making his
will” are synonymous. For example, Albert, 1. in Flint v. Varney 28
stated:
27 Supra, n. 7, at 363, quoting from Hedges v. Hedges (1708); Prec. Ch. 269, at
269-270, 24 E.R. 130. This sentence was also cited with approval in the earlier
case of Walter v. Hodge (1818), 2 Swans. 92, at.107, 36 E.R. 549, at 554.
28 (1935), 264 N.W. 277, at 279. There are similar dicta in other American
cases.
McGILL LAW JOURNAL
[Vol. 17
It is not necessary, however, that the gift be made while the donor is
in extremis or moved by apprehension of immediate death when there is
no time or opportunity to make a will … 29
The fact that American law disapproves of the in extremis standard
is irrelevant in this context.
The rationale of this area of law would indicate that the narrow
interpretation is thd more desirable. According to Megarry, 0 the
lack of an opportunity of making a will was probably one of the
reasons for permitting gifts mortis causa. However, although it is
a reason for permitting gifts of this nature there is no logical reason
why it should be interpreted as being a condition of the validity
of such a gift. As Denning, L.I remarked in Re Wingham,31 in rela-
tion to the privileged wills of soldiers: “That would be to confound
the reasons for the rule with the rule itself.” 32
It is submitted that even apart from the above rationale the
narrow interpretation is the more desirable for reasons of con-
sistency. However, it is by no means clear that this is the interpre-
tation that will eventually be assigned to the word “opportunity”
by Canadian judges. If Cowper, C. intended to interpret the word
narrowly it would seem that he would have done better to rephrase
his dictum “…. where a man lies in extremity, and being surprised
with sickness, not having an opportunity of making his will… “.
By using the word “or” instead of “and” the judge could be con-
strued as implying that the lack of an opportunity of making a will
is a completely separate and distinct standard from in extremis.
This is another area where a ruling from the Supreme Court of
Canada would be useful. In the meantime, all that can be said with
certainty is that there is a possibility that the judiciary has, in
29E.g. Smith v. Clark (1952), 219 Ark. 751, 244 S.W. 2d 776, per Millwee, J.,
at p. 780:
is not needful that the gift be made in extremis when there is no
“It
time or opportunity to make a will.”
See also Gray v. Walters (1952), 243 Iowa 430, 51 N.W. 2d 885, and In Re
Presender’s Estate (1954), 285 App. Div. 109, 135 N.Y.S. 2d 418.
30 Supra, n. 18, at p. 22.
3′ [1949] P. 187, at 196. (C.A.).
32 Note also the following statement by R.E. Megarry in relation to soldiers’
privileged wills:
“The reason for granting the privilege is that soldiers on active military
service are usually inops consilii, but this is no part of the rule that
the deceased should in fact have been bereft of competent advice; the
motive must not be confused with the rule itself.”
(1941), 57 L.Q. Rev. 481, at 482, referred to by the same author in (1965),
81 L.Q. Rev. 21 at 22.
No. 3]
GIFT MORTIS CAUSA
effect, admitted an exception under limited circumstanctus to the
strict standard of “in extremis”.
It is essential to bear in mind the decisions in Thompson v.
Mechan and Canada Trust Co. v. Labadie when considering the
significance of the judicial interpretation of the third requirement
of the gift mortis causa, as stated in Cain v. Moon, in order to be
able to assess accurately the scope of this law.
“..
. Thirdly, the gift must be made under such circumstances
as show that the thing is to revert to the donor in case he should
recover.”
Although the requirement can best be met by proving an oral
condition of death expressed by the donor at the time of the alleged
gift, the authorities are agreed that in appropriate circumstances
the court is prepared to impute this condition when the donor is
silent on this issue. Meredith, C.3.O., in Kendrick v. Dominion Bank
and Bownas,3 3 cited with approval the earliest authority on this
point, Gardner v. Parker,34 where the Vice-Chancellor, Sir John
Leach, commented: 35
The doubt here is, that the donor has not expressed that the bond was
to be returned if he recovered. This bond was given in the extremity
of sickness and in contemplation of death; and it is to be inferred that
it was the intention of the donor that it should be held as a gift only
in case of his death. If a gift is made in expectation of death, there is
an implied condition that it is to be held only in the event of death.36
This presumption is, of course, rebuttable on proof of other
circumstances pointing to a different intention on the part of the
donor3 7 If the donor specifically states, or clearly indicates that
despite his serious illness he nevertheless wishes to make an
unconditional gift, the courts will treat this as a gift inter vivos.
33 (1920), 48 O.L.R. 539, at 542 (Sup. Ct., App. D.).
34 (1818), 3 Madd. 184, 56 E.R. 478.
35 Ibid., at 185, 478.
36 This comment by the Vice-Chancellor was also cited with approval by
Wynn-Parry, J., in Re Lillingston [1952] 2 All E.R. 184, at 187 (Ch. D.). The
cases of Lawson v. Lawson (1718), 1 P. Wins. 441, 24 E.R. 463; Miller v.
Miller (1735), 3 P. Wins. 356, 24 E.R. 1099; and Jones v. Selby (1710), Prec.
Ch. 300, 24 E.R. 143 established this rule.
American law is similar on this issue. Cf. Dietzen v. American Trust and
Banking Co. (1939), 131 S.W. 2d 69, at 71, per Dehaven, J.:
“If made in the last sickness of the donor, or while languishing on his
deathbed, it will be presumed to have been done in contemplation of
death.”
37 Supra, n. 33, at 543.
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[Vol. 17
This was the point at issue in Newell v. National Bank of Norwich,38
where the donor, who was seriously ill with pneumonia and expected
to die, delivered a diamond ring to the plaintiff. The circumstances
surrounding the case revealed that despite his serious illness the
donor had intended to make an irrevocable gift. Cochrane, P.J., of
the Appellate Division of the Supreme Court of New York, upheld
the validity of this attempted gift and approved the following rule:
The test whether the gift is one inter vivos or one causa mortis is not
the mere fact that the donor is in extremis, and expects to die, and does
die of that illness, but whether he intended the gift to take effect in
praesenti, irrevocably and unconditionally, whether he lives or dies.8 9
Thus far is straightforward. The rationale is that it is very im-
probable that a man would denude himself absolutely of all he has
and leave himself at the mercy even of his brother. Thus it is a
logical assumption for the courts to imply the death of the donor
as a condition precedent to the validity of the gift if nothing is said
to the contrary. However, the matter was thrown into confusion
by the decision of a number of judges to extend the logic and hold
that if the donor is so ill at the time of the gift that he has no hope
of recovery at all then it would be wrong to impute an implied
condition of death. What could be more natural than that a man
with no hope of recovery should give away his property uncon-
ditionally, the argument runs.
The Scottish case of Lord Advocate v. M’Court 40 was the first to
hold that after the donor passes a certain extreme degree of illness
not only does the presumption in favour of a gift mortis causa no
longer apply, but in fact an implied presumption that a gift inter
vivos was intended arises.
The donor in this case, according to the Lord President,41 was
in such a state of health that practically the door of hope of recovery
was closed. He was dying of mortification in his leg, and had been
worn to a skeleton by the time of the alleged gift. The Lord President
did not doubt that the donor, like everybody who saw him, was
aware that it was merely a question of time, probably a very short
time, before his lease of life would be over.42
In this state of facts, Lord Adam reasoned:
“… the conclusion that a person during his life has divested himself of
almost his whole estate is in certain circumstances one which the court
38 (1925), 214 App. Div. 331, 212 N.Y.S. 158.
39 Ibid., at 332, 159. This rule is stated in Corpus Juris, Vol. 28, p. 622.
40 (1893), 20 R. (Ct. of Sess.) 488.
41 The Right Hon. J.P.B. Robertson.
42 Supra, n. 40, at 497.
No. 3]
GIFT MORTIS CAUSA
would have extreme difficulty in reaching. Suppose that a person in the
prime of life is said to have made over his estate to somebody else thereby
making himself a beggar, it would be very difficult to accept the state-
ment. But it is entirely a question of circumstinces, and the presumption
arising from the state of man’s health may lead to a very opposite con-
clusion. If a man, as in this case, is on his deathbed, ill of a disease from
which there is no hope of recovery, in that case there ceases to be a
presumption against his divesting himself, and there arises a presumption
that he would do so absolutely, if he transferred his property at all. There-
fore, in the particular circumstances of this case, I do not think the
presumption is at all against the view that Hugh made an absolute dona-
tion of his estate, and I think there is but little to favour the view that
the transaction was a donation mortis causa.”42a
Were it not for the case of Re Lillingston,43 it is quite likely that
today the decision in Lord Advocate v. M’Court would either be
ignored or restricted in its application to Scotland. However, in
Re Lillingston, Wynn-Parry, I. expressed his approval of the decision
in the Scottish case despite the fact that he limited its application
to only the most exceptional cases of illness and distinguished the
facts in the case at bar.44
The donor in Re Lillington was a seventy-eight year old lady who
at the time of the alleged gift had been in poor health for some
months and was confined to her bed by illness. She felt she was
“done for”, that she was very near her end, and would die without
leaving her room again. This was the sort of situation which could
conceivably have led to the application of Lord Advocate v. M’Court,
but the judge held that it was not absolutely certain that the donor
would die within a few days, although she thought she was almost
certain to die soon: in these circumstances the essential condition
of a gift mortis causa, that the donor must intend the subject-matter
of the gift to revert to him should he recover, was satisfied.
Another case in which the principle in Lord Advocate v. M’Court
might have been adopted was Re Mustapha.45 The alleged donor,
who was suffering from heart disease, was suddenly taken ill. He
was put to bed, and a doctor sent for. After the donor had partially
recovered, the doctor left to fetch some medicine, and in his absence
the alleged gift was made. The donor sent for the plaintiff and, in
the presence of his housekeeper, said: “Lulu, take my purse and
keys … Put them in your pocket; take the bonds; all is yours. Take
care of your brother and sister.” When the doctor returned the
donor was in a dying state, and expired shortly afterwards.
42a Ibid., at p. 499.
43 [1952] 2 All E.R. 184 (Ch. D.).
44 Ibid., at 188-190.
45 (1891), 8 T.L.R. 160.
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As Wynn-Parry, J. observed,46 if the principle in Lord Advocate v.
M’Court is to be extended beyond its strictest interpretation the
decision in Re Mustapha should have been the reverse. The word
“Take the bonds; all is yours. Take care of your brother and sister,”
are not the words of a man who thinks he has any chance of
recovery.
Thus, the present state of English law appears to be that Lord
Advocate v. M’Court will only be applied in the most exceptional
circumstances. According to Wynn-Parry, J. the correct test to be
applied -is as follows:
It is not shown by the evidence that [at the time of the alleged gift] Mrs.
Lillingston’s death was inevitable within the immediate future, and, in
my judgment, that must be shown before the reasoning of the Court of
Session in Lord Advocate v. M’Court can apply.47
It is not entirely clear whether the courts will apply a subjective
or an objective test as to whether at the time of the gift the death
of the donor was “inevitable.” It is submitted that a subjective test
is preferable, as it is the state of mind of the donor that the courts
attempt to ascertain when making a ruling on the validity of the
alleged gift in each case. However, the law may well be otherwise
if Wynn-Parry is correct in his following comment:
In the present case the evidence does not lead me to the conclusion
that [at the time of the alleged gift] it was certain that death would
overtake Mrs. Lillingston within a matter of days. No doubt, she felt
that she was almost certain to die soon, but that does not appear to me
to be sufficient.48
Clearly, Wynn-Parry, J. was determined to put the strictest possible
interpretation on the reasoning in Lord Advocate v. M’Court.
There are a number of vital questions relating to the scope of
the gift mortis causa that will sooner or later have to be decided
by the Supreme Court of Canada. Firstly, there is need of a ruling
as to whether Roach, J.A., of the Ontario Court of Appeal, was
correct in applying the in extremis test to the first requirement for
a valid gift mortis causa, as stated in Cain v. Moon. Secondly, the
decision must be faced as to whether the reasoning in Lord Advocate
v. M’Court, adopted though strictly defined in England in Re Lilling-
ston, should be similarly adopted in Canada.
If the answer to these two questions proves to be in the affir-
mative, then the Supreme Court will be faced with a third, more
46 Supra, n. 43, at 190.
4VIbid.
48Ibid., at 189.
No. 3]
GIFT MORTIS CAUSA
is the “in extremis” standard under the first
difficult, question, –
requirement in Cain v. Moon co-extensive with the “inevitability of
death” standard under the third requirement ? The answer to this
third question is vital to a proper consideration of the scope of the
gift mortis causa. If the answer is No, the courts will be faced with
the difficult task of distinguishing in extremis from inevitability of
death. Assuming in extremis is defined as a “settled, hopeless expec-
tation of death”49 any distinction that is attempted must inevitably
be tenuous and unrealistic. If the answer is Yes, the following situa-
tion will represent the law. The donor will have to be in extremis
in order to qualify under the first requirement of Cain v. Moon, but
if he is, and no words to the contrary are expressed by the donor,
he will automatically fall foul of the third requirement, as inter-
preted by Lord Advocate v. M’Court and Re Lillingston, as by being
in extremis he will be deemed to have intended a gift inter vivos.
Thus, in all situations except those where the donor is in extremis
yet specifically states that the gift is conditional on his death, and
except possibly those cases where the donor has no opportunity of
making a will,”‘ the alleged gift mortis causa will be declared invalid.
Thus, the demise of the gift mortis causa, longed for as far back
as 1827 by the Earl of Eldon in Duffield. v. Hicks,51 will have been
all but achieved.
Possibly the only chance of survival for the gift mortis causa
would be appropriate legislative action. As mentioned earlier, judi-
cial dislike of the gift mortis causa is based primarily on the strong
possibility of fraud and perjury. If this source of worry were
removed, there would seem to be no logical reason for the courts
to interpret the rules relating to gifts mortis causa as strictly as
occurred in Lord Advocate v. M’Court, Thompson v. Mechan, and
the Canada Trust Co. v. Labadie.
To date, however, the only piece of legislation affecting this
area of law is s. 14 of The Evidence Act:9 2
“In an action by or against the heirs, next of kin, executors, administrators
or assigns of a deceased person, an opposite or interested party shall
not obtain a verdict, judgment or decision on his own evidence in respect
49See supra, n. 26, for some Canadian cases on this point.
50 See supra, for a discussion of the authorities on this point.
ri Supra, n. 3.
92 R.S.O. 1960, c. 125, as amended by Stats. Ont. 1960-61, c. 24; 1966, c. 51;
1968, c. 36; 1968-69 c. 34.
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of any matter occurring before the death of the deceased person, unless
such evidence is corroborated by some other material evidence.” 53
This section is certainly not effective enough in itself to allay
judicial fears. It is submitted that two possible statutory reforms
might be considered in this context: firstly, the necessity of corro-
boration could be strengthened by making a certain number of
disinterested witnesses essential;54 or a second, and possibly more
practical, proposal would be to limit such gifts to articles of small
value. 5
If a case occurred whereby the Supreme Court of Canada is
given the opportunity of making a ruling on the scope of the gift
mortis causa before appropriate legislation is considered, it is quite
likely that the court would consider this type of gift so potentially
hazardous that it would adopt the strict interpretation of the first
and third requirements. By so doing, the court would effectively
bring about the demise of the gift mortis causa. The onus would
thus appear to be on the appropriate legislative assemblies to take
immediate action if they consider the gift mortis causa worth pre-
serving.
53 Other provinces and territories have enacted similar legislation: Nfld:
The Evidence Act, R.S.N. 1952, c. 120, s. 14; N.S.: The Evidence Act, R.SN.S.
1967, c. 94, s. 42; P.E.I.: The Evidence Act, R.S.P.E.I. 1951, c. 52, s. 11; Alta.:
The Evidence Act, R.S.A. 1970, c. 127, s. 13; B.C.: The Evidence Act, R.S.B.C.
1960, c. 134, s. 11; N.W.T.: The Evidence Ordinance, R.O.N.W.T. 1956, c. 31,
s. 15; Y.T.: The Evidence Ordinance, R.O.Y.T. 1958, c. 37, s. 15.
54 Justinian was so apprehensive of fraud with respect to gifts mortis
causa that he required them to be made in the presence of five witnesses.
0 Both these proposals were suggested by Ferguson, J., in Hall v. Hall,
supra, n. 4, at 688-689.
