What is a gift causa mortis (gift in view of impending death) and what are the requirements to make it effective in California?

Share This Article

The Corona epidemic has led to 850,000 excess deaths at the time of this writing in the United States alone and many decedents were utterly unprepared with no will or other instrument to allow an orderly transfer of their assets. Many patients in the ICU justifiably worry about death and what happens to their belongings.

In contrast to an inter-vivos gift, a will requires considerable formalities, and an oral will, also called nuncupative will, is not recognized in California, in contrast, a handwritten will (holographic will) is recognized. Let’s turn to the gift causa mortis which is a special case of a gift between the living when the donor contemplates impending death.

The gift causa mortis  is also known in Law Latin as donatio mortis causa (DMC), colloquially as deathbed gift (misleading), or, as in the CA Probate Code 5700 – 5705, as Gift in View of Impending Death.

It is a non-probate property transfer that is essentially testamentary in character. While in other common law jurisdictions a gift of real property may be possible as a gift causa mortis, the CA statute is clear: “As used in this part, “gift” means a transfer of personal property made voluntarily and without consideration.”

Further in the statute: A gift in view of impending death is one which is made in contemplation, fear, or peril of impending death, whether from illness or other cause, and with intent that it shall be revoked if the giver recovers from the illness or escapes from the peril.

“A gift in view of impending death is revoked by:

  1. The giver’s recovery from the illness, or escape from the peril, under the presence of which it was made.
  2. The death of the donee before the death of the giver.

A gift in view of impending death may be revoked by:

  1. The giver at any time.
  2. The giver’s will if the will expresses an intention to revoke the gift.

A gift in view of impending death is not affected by a previous will of the giver.”

Why is the gift causa mortis considered problematic as a common law legal concept?

The gift causa mortis was defined in the Code of the Roman emperor Justinian (6th century C.E.) and adopted by English Common Law when oral wills became unenforceable with the enactment of the Statute of Frauds.  The concept clashes with the Common Law because a Gift Causa Mortis operates outside of the will context but has as will-like effect but bypasses will formalities. The concern is the possibility of fraud, perjury, and abuse of process. The gift causa mortis is a chimera falling somewhere between gifts and trusts. Many consider it an imperfect gift or incompletely constituted trust (1).

Regardless, the pandemic may have given “a new lease of life for the donatio mortis causa” (the title of the paper referenced above).

What are the minimal requirements for a gift causa mortis?

“A verbal gift is not valid unless the means of obtaining possession and control of the property are given, or, if the property is capable of delivery, unless there is actual, constructive, or symbolic delivery of the property to the donee” (link 2).

The theory of delivery in gifts causa mortis is developed in an identically titled law review article from 1950 (link 3). Disputes over gifts causa mortis are rare. Here is a 2020 Wisconsin case with some twists involving a gift causa mortis and the death being a suicide (4).

References

(1) Sue Farran, Russell Hewitson, A new lease of life for Donatio Mortis Causa?, Trusts & Trustees, Volume 26, Issue 7, September 2020, Pages 613–619

(2) California Law Revision Commission. Tentative recommendation relating to Gifts in View of Death. September 1990.

(3) Marcum, James V. (1950) “The Theory of Delivery in Gifts Causa Mortis,” Kentucky Law Journal: Vol. 39 : Iss. 2 , Article 6.

(4) Estate of Oaks v. Stouff (In re Estate of Oaks), 392 Wis. 2d 352, 944 N.W.2d 611, 2020 WI App. 29 (Wis. Ct. App. 2020)

We don’t spam! No more than five mailings per year.

More Articles

Schedule a free consultation with Klaus Gottlieb

© 2024 wealthcarelawyer.com. All rights reserved.

Wealth care is an orchestrated approach to your estate planning needs that considers multiple dimensions and coordination with your existing financial and tax professionals.