In Common Law jurisdictions, the maxims ‘equity will not aid a volunteer’ and ‘equity will not perfect an imperfect gift’ are prominent in the law of trusts, particularly in relation to the transfer of property. These maxims mean that where, for instance, B (donee) has not provided any value to make him entitled to a property, whether realty or personalty, which A (donor) has given him, the courts will not assist him in securing the property if it is discovered that A has failed to do all that is necessary under the law to transfer the property to B. 

Any property being vested in another without compensation is a gift, and depending on the mode of transfer adopted by the donor, such a gift may be held to be perfect or imperfect. In the law of trusts, a trust that has been completely constituted^[1] is a perfect gift and a beneficiary or donee can claim under it with or without providing consideration.^[2] Whereas, under an incompletely constituted trust, a beneficiary who has advanced no consideration is a volunteer and is precluded from receiving any benefits^[3] because equity will not aid a volunteer.

However, there are instances where a volunteer is able to claim a benefit from an imperfect gift.^[4] A good example is in the case of a Donatio Mortis Causa (otherwise called a deathbed gift). This post aims to examine the characteristics and effects of a deathbed gift so as to accentuate its role as a veritable exception to the equitable rule against aiding volunteers.

What is a Donatio Mortis Causa?

Donatio Mortis Causa is a gift made in contemplation of impending death. For example, where a donor expecting to pass away shortly, transfers his property to a donee stating that title should pass to the donee if he dies. In the case of Re Beaumont,^[5] Buckley J described donatio mortis causa as a gift which is neither entirely given during the lifetime nor testamentary. It is an act done while still alive, by which the donee is to have the absolute title to the subject of the gift, not at once but if the donor dies. Also noteworthy is the fact that the title of the donee is not complete until the donor’s death,^[6] and if the donee predeceases the donor, the gift fails.^[7] 

Conditions Necessary for an Effective Donatio Mortis Causa

Generally, a voluntary transfer of property through a deathbed gift is imperfect and a donee who is a volunteer would ordinarily be incapable of benefiting from it. However, according to the dictum by Nourse LJ in Sen v. Headley,^[8] there are three conditions which must be complied with to enable the courts to perfect an imperfect transfer of property of such nature. Each condition will be highlighted below.

1. The Gift Must be Made in Contemplation of the Donor’s Death

The donor must make the gift in particular contemplation of impending death and not death someday. For instance, a donor who is suffering from an ailment and is expecting to die gives a piece of jewellery to another (the donee) on the condition that if he dies, the donee becomes the owner of the jewellery. The gift is imperfect because there is no intention at that time that title should pass to the donee. However, if the donor dies, the condition precedent is fulfilled and the intention comes into existence thus perfecting the imperfect gift. 

2. The Gift Must be Conditional and Absolute on the Donor’s Death

To satisfy this requirement, the gift must have been made on the condition that it would become effective on the death of the donor.^[9] This applies even if the gift has been delivered to the donee, and the effect is that the donor can demand that the property be returned to him because title does not pass to the donee until the donor dies. Thus, if the donor recovers from his illness or revokes the gift while still alive, the gift fails.

3. The Donor Must Part with the Subject Matter of the Gift

The donor must part with dominion over the subject matter of the gift.^[10] If the donor fails to undertake physical delivery of the property to the donee (whether himself or through an agent), the donatio mortis causa will fail. For example, in Bunn v. Markham,^[11] the donor declared that specific parcels were intended for the named donees but that the parcels should be given to them after his death. The court held that there was no sufficient delivery and that the gift was ineffective.

Effects of a Valid Donatio Mortis Causa

A valid donatio mortis causa works to perfect the hitherto imperfect gift of the donor. It provides an avenue for a volunteer beneficiary who has not provided any valuable consideration to lay claim to an imperfect gift to which he would otherwise not be entitled. Although it is settled that equity will neither aid a volunteer nor perfect an imperfect gift, it is clear that a well-executed deathbed gift is an exceptional case where these rules will not be applied strictly.

References

^[1] A trust is completely constituted when the settlor has vested the trust property in trustees for the benefit of the beneficiary. In all other cases, the trust is incompletely constituted.

^[2] Consideration is anything that has value under the law.

^[3] J.O Fabunmi, Equity and Trusts in Nigeria (first published 2006, Obafemi Awolowo University Press 2011) 223.

^[4] ibid.

^[5] (1902)1 Ch 889 at 892.

^[6] Delgotte v. Fader [1939] Ch 922 [1939] 3 All E.R. 682.

^[7] Tate v. Hibert [1793]2 ves 111 at 120.

^[8] [1991]2 All E.R. 636 at 639.

^[9] Re Hillington [1952]2 All E.R. 184.

^[10] Re Craven’s Estate [1937]3 All E.R. at page 37.

^[11] [1816] 7 Taunt 224.